Even though it looks like Bush has pretty much sewn up the election at this point, the harm to the American system of government has already been done. The legal precedents that have followed this election have shown such contempt for representative government, that the imminent Bush victory is hardly worth celebrating.
For the first time in American history, a disputed election has all but ignored the legislative branches of the Federal government and of the states. Except for the election of 1860 (which is hardly a model for future behavior) all other disputed elections have been solved through legislative means. These elections were settled by action of the Congress itself, or by action of a commission working under the authority of the Congress. In this election, the Congress and the Florida legislature have been all but absent. Not only have the legislative bodies been ignored, but they have been openly disparaged as trying to usurp the will of the people. Although this is totally contrary to American political convention and to the philosophy of virtually every classically liberal theorist, it appears to be the natural consequence of a century of President and judge worship in the United States.
These twisted ideas have taken hold in the public mind during this post-election debate. While the legislative bodies are derided as bickering talking shops, the Supreme Court has taken hold of the matter and is seizing the de facto power of naming a President of the United States.
The trouble began when courts even considered that they had somehow been given the knowledge and the power necessary to determine a winner in this election. As the Florida Supreme Court’s latest dissenting opinion has conceded, the margin of victory is so much smaller than the margin of error in counting that there is no reason to believe that some “correct” answer can be determined. Any marginally intelligent judge should have been able to figure this out at the beginning and to recognize that no judicial decision could create a proper remedy to this political question. In fact, this is the exact situation that federal law points to when it dictates that a state legislature must act when a winner can not be determined by the deadline after election day. There is no more reason to believe that Bush won the Florida popular vote than to believe that Gore won. If there is any situation that calls for the election to be settled by the legislature, this is it.
Since the law still has a few breaths left in it, the Florida legislature has in fact met and begun proceedings to select electors. Unfortunately, however, their power is not necessarily going to be recognized as legitimate by the Florida Supreme Court. If the Florida court is able to force a recount and award Gore more votes, the Court itself could demand that the Secretary of State assign different electors than it has already assigned. In a challenge between legislature appointed electors and court appointed electors, some legal experts believe that the U.S. Supreme Court could order the U.S. Congress to accept only the court appointed electors.
Now I admit that it would be a tall order to all these things to fall into place, but who would doubt that such a situation would be tolerated by the American public were it to come to pass? At every level, we would have a situation where a court had ordered a legislature on how to exercise its Constitutional authority. In the past, if there were competing slates of electors, it was up to Congress to decide which electors were to be accepted. In modern American it is perfectly conceivable that a court could dictate to the Congress how they were to use power explicitly granted them in the Constitution.
In the above situation, Gore would win the election, but the scenario for a Bush victory is not much happier. As Jeff Tucker has pointed out, if the Supreme Court were to simply force the Florida Supreme Court to uphold the primacy of the Florida legislature in the matter, then liberty would prevail. Unfortunately, however, the court has remanded to issue to the Florida Supreme Court based not on the traditional issue of legislative authority, but on a highly expansive interpretation of equal protection. While the Supreme Court could have acted to limit the abuse of the Constitution, it has instead acted to further diminish the freedom of states to have any control over their own elections and their own laws. Broadly applied, such a ruling could be construed to mean that any variations in laws between local governments would be unconstitutional. Variations in funding between school districts, or differences in zoning laws could be declared unconstitutional because there would be no “uniform standard” applied to all areas of the state. Local politics becomes unconstitutional.
Since the Supreme Court appears to have ignored the issue of legislative supremacy in the matter, it is difficult to see what good news has come out of the Supreme Court meddling in the election. They have taken a bad decision from the Florida Supreme Court and inflated it into a nationwide issue of equal protection. In the end, the U.S. Supreme Court’s decision may have spared us a Gore presidency, but it was a dirty win. If this were a game of football I might be tempted to think that a win, is a win, is a win. In a sporting event though, the rules are the same the next time a game is played. With this win, though, the rules have been changed to so favor the judiciary at the expense of the elected legislatures, that it may not have been worth it.
December 14, 2000
Ryan McMaken is a graduate student in American politics at the University of Colorado. He edits the Western Mercury.