Standard liberal laments about the outcome of last year’s US presidential election represent it as an outrage to the democratic law of the land. Thanks to vicious manipulation of recorded ballots by Republican functionaries in Florida, brazenly backed by the conservative majority of the Supreme Court, Bush stole an election rightfully won by Gore. Such has been the refrain of Democratic loyalists and journalists up and down the country. At the higher reaches of this band of opinion, however, sheer denunciations of electoral robbery are sublimated into a loftier case. Among constitutional theorists, Bush’s victory is pictured not so much as straightforwardly illegal but rather as morally and historically improper—a violation not of the letter, but of the spirit of the Constitution. Here a mystical ideal of ‘true’ American democracy serves to blur the boundaries between this imaginary construct and the actually existing system.
The most extravagant version of this argument was offered by Bruce Ackerman, a Democratic blow-hard from Yale, in an essay entitled ‘Anatomy of a Constitutional Coup’ (London Review of Books, 8 February 2001). Ackerman blithely announces the existence of an unwritten—‘living’—Constitution, superior to the dead letter of the codified document itself. Whatever the facts of the quadrennial gatherings of the nation’s Electoral College, the former has created a system in which ‘Americans think and act as if they choose their President directly’. In 2000 this invisible text interacted, like some pantomime ghost, in ‘unpredictable and awkward ways’ with the visible details of the law. The living Constitution awarded the election to Gore. But in a move that amounted to little less than a putsch, Bush substituted for it a corpse. In Ackerman’s words, ‘Bush’s weapon was the written Constitution’. What could be a more underhand trick? Won in such a nefarious arena, Republican victory inevitably came ‘at grave cost to the nation’s ideals and institutions’. Such patriotic posturing is an extreme, but by no means isolated example of aggrieved partisanship cloaking itself in tones of high legal dudgeon. In the New York Review of Books (‘A Badly Flawed Election’, 11 January 2001) the Polonius of liberal jurisprudence, Ronald Dworkin, while admitting that Gore would not necessarily have gained from further recounts, nonetheless pined for ‘a national affirmation of democratic principle’ that would have allowed them to continue. ‘Those of us who have been arguing for many years that the Supreme Court makes America a nation of principle have a special reason for sorrow,’ he intoned pitifully.
Amidst this kind of vapouring, Richard Posner’s analysis of the Presidential election of 2000 comes as a gust of fresh, cold air. A tough-minded conservative, appointed Federal Appeals Judge by Reagan, Posner wastes no time on pious daydreams of what American democracy should be like. The thrust of his book is to describe, for the most part with steely accuracy, what it actually is: a shallow and restrictive system, which he commends for its limitations. Presidential elections in the US are not, he points out, some magical transubstantiation of the people’s will, but a mundane mechanism allowing a minority of the population—barely 17 per cent of which voted for either Gore or Bush—to ‘exercise a mildly controlling function’ to ensure an orderly succession of government. The people do not rule in any representative democracy: their elected officials do. Hence, he notes with satisfaction, ‘we can be enthusiasts for democracy without having to prate about self-government or the popular will’. In America, Posner sardonically remarks, politicians are unlikely to be typical of those who vote for them. It is ‘the glib, the clever, the shrewd, the handsome, the charismatic’—here, though not elsewhere, he remarkably omits the rich—who are likely to dominate in electoral competitions, constituting a political class of their own.
Nor are voters themselves in fact ‘the people’. They are at best only a fraction—‘and not necessarily a representative fraction’—of the population: adult, registered, unincarcerated, in some cases non-felon. In practice, the scant 50 per cent of this grouping that does vote is overwhelmingly the better-off half. The winner-takes-all (as opposed to proportional) system drives a further wedge between popular will and electoral outcome. At the legislative level, it stymies the chance of any third party developing. Under conditions of duopoly, moreover, Republicans and Democrats both ‘have a strong incentive to move to the centre of the distribution of political opinion. This may force voters to choose between two candidates who have largely identical views that are not widely supported but which have the support of the median voter’. Voting will at best only loosely accord with public opinion, and may register ‘the “popular will” perhaps not at all’. Low turnout would not matter if non-voters had the same interests as voters; but as Posner—well aware of social inequality—observes, ‘they do not’.
In looking at the Constitution, Posner stresses how much the Founding Fathers retained from the English ancien régime and its colonial charters: not just their indirect and ‘aristocratic’ features, but also their limited electoral base. The broadening of the suffrage since the eighteenth century has been anything but a smooth progression. Literacy tests and restrictions on aliens—such as Native Americans—were introduced to limit voting rights in the last third of the nineteenth century, some with the support of the movement for women’s suffrage. In the Jim Crow South a variety of devices—from poll taxes to violent intimidation—disenfranchised the majority of blacks. Florida was no exception. The nominally universal suffrage of the thirty-five years since the Voting Rights Act of 1965 has been qualified, as he demonstrates, by the effects of corporate campaign finance, voting malapportionment, midweek polling, gerrymandering, hard-to-manage registration processes, continuing intimidation of black voters, an electoral technology that discriminates against the poor and illiterate, and by the sort of cynicism bred by the system itself—all of which reduced the effective votes in the 2000 presidential election to just over a third of the population. If property qualifications were formally abolished two centuries ago, the electorate—as Posner, no WASP supremacist, shows—remains severely skewed: socially, economically and racially. The legendary American democracy of Tocqueville’s imagining is actually ‘closer in spirit to Burke than to Rousseau’. One might add: and to the hardline Burke of Thoughts and Details on Scarcity. Peppering his description of the political order with terms like ‘quality control’, ‘owners’, and ‘costs’, Posner remarks with relish that US democracy is based on ‘commercial values’: supportive of, and supported by, a market economy.
Since the electoral system is a mechanism for ensuring the smooth perpetuation of government, rather than directly expressing the popular will, Posner argues that in a situation of statistical deadlock, rules should be legalistically observed, and judicial interpretations of them expeditiously delivered. He then proceeds to a lucid and detailed analysis of the outcome in Florida. Nationally, of course, Gore won a plurality of the vote—with a lead of 0.5 per cent over Bush, in a turnout of some 105 million. (Like many others, Posner wrongly speaks of a ‘majority’, forgetting Nader’s electorate, which was larger than the difference between Democrat and Republican: no-one garnered a majority of the popular vote.) In Florida, Posner finds, Gore probably also commanded a plurality of voters’ intentions. He supports this conclusion with a scrupulous regression analysis of the incidence of literacy, income and race on local voting patterns, which suggests that a majority of those who spoiled their ballot papers are likely to have wanted to vote for Gore. With different technology, and precinct rather than county-level tabulation, he comments, Gore might well have won the Florida vote legally; although under those conditions the Republicans might also have shifted more resources into populous, low-income counties. But that was not the election that was held. For Posner, not intentions but results are what matter.
Bush’s original margin of 930 votes out of nearly 6 million made the Florida result in effect a statistical tie—a lead so razor-thin that, in Posner’s view, it was merely probable that Bush actually received more votes. Could a thorough recount have decisively shifted the result out of the deadlock zone? Posner concludes that it could not, but only after he has conducted the reader through an exhaustive account of the criteria—‘the heart of “chadology” country’—used for recovering votes, from the minimal standard actually demanded by the Florida code to Broward County’s maximalist concept of recuperating any ballot where hand-counters might think they could discern a voter’s intention (dangerously subjective, in Posner’s eyes). He suggests that, on any other than Broward’s grounds, it was highly unlikely that hand-counts (themselves not 100 per cent reliable) could have moved away significantly from a 50/50 result. But in any case, the Florida election code unambiguously states that county-wide hand recounts can only be ordered if there are problems in the tabulation of votes, as opposed to voter errors—such as failing to follow the voting instruction to punch a hole clean through the ballot paper—or problems of ballot design. Actual errors in tabulation—a machine failing to count a clean-punched hole—were few, and statistically as liable to favour Gore as Bush.