Saturday, October 30, 2004

Al Gore has a legacy...

Even though he was never elected President, Al Gore has had a massive impact on election politics. From Joseph Perkins at the San Diego Union Tribune, comes an editorial discussing just how much Gore's legacy of litigation may be harming our democratic process:

Richard Nixon would have captured the 1960 presidential election but for five states he lost by 5,000 votes or fewer – Missouri, Illinois, Nevada, New Mexico and Hawaii.

Gerald Ford would have retained the presidency in 1976 but for two states he lost by no more than 5,600 votes – Ohio and Hawaii.

Though the 1960 and 1976 elections were close, though they turned on a few thousand votes in a handful of states, the outcomes were faithfully accepted by the American people, by Republicans and Democrats alike.

That's because neither Nixon or Ford demanded that the votes be recounted in the states in which they lost by narrow margins. And neither Nixon or Ford insisted they were denied election because of voting irregularities in some state or another.

Then there was the 2000 election.

George W. Bush and Al Gore went to bed on election night uncertain whether they had won or lost.

Later, when all of Florida's voting precincts had reported their tallies, Bush had eked out victory in the Sunshine State, pushing him over the top in the Electoral College.

But Gore refused to accept that he lost Florida, that he lost the presidency, by so small a margin. He refused to put the national interest before his own selfish interest.

He dispatched his lawyers to the Sunshine State to contest the election. And his lawyers used every legal maneuver in their arsenal to overturn Gore's defeat – challenging the manner in which Florida conducted its balloting, claiming that certain voter blocs were disenfranchised.

The result is that a portion of the populace refuses to this day to accept the outcome of the 2000 election (despite a post-election ballot review by a consortium of media organizations that concluded, unequivocally, that Bush won Florida no matter how the votes were counted or recounted).

It is because of the Gore precedent, because he tried to win the 2000 election in the courts after losing at the ballot box, that this nation remains so bitterly divided between Republicans and Democrats.

And the nation is likely to remain bitterly divided following this year's presidential election. Because John Kerry is already gearing up to contest the outcome of the election even before voters go to the polls on Election Day.

In fact, lawyers for the Democrats already have filed some 35 lawsuits in some 17 states. And if Kerry goes down to defeat on Election Day, there almost certainly will be an avalanche of lawsuits claiming that the Democrat somehow was cheated out of the presidency.

Of course, Kerry and his fellow Democrats profess that their lawsuits are motivated only by the noble desire to defend every American's constitutional right to vote. They maintain that they simply want to ensure that every vote cast in this year's election is properly counted.
But the reality is that the rash of election-related litigation precipitated by Kerry and the Democrats is doing lasting, perhaps irreparable, damage to the democratic process in this country.


Indeed, Doug Lewis, executive director of the Election Center, a nonprofit organization, told the Associated Press this week that all the legal wrangling is "disastrous for fundamental faith in the system" by which presidents have been elected since this nation's founding.

"Pretty soon," he said, "You get people saying, 'Shoot, then why bother to vote?' There has been such a concerted effort to beat up on the system itself that people need to step back and understand that if you destroy the very process by which your candidate gets elected, then what have you gained?"

I think it is time for a moment of grace in this year's presidential election.

John Kerry and George W. Bush ought to take a few minutes out of their schedule to have a heart to heart chat, much as Richard Nixon and John F. Kennedy had six days after the 1960 presidential election.

The Democrat and Republican should agree to accept the outcome of this year's presidential election, no matter how close, no matter which of the two candidates comes out on top. They also should forswear any post-election lawsuits. And they should urge their supporters to do the same.

If Kerry and Bush were to evince such statesmanship, they not only would do much to restore faith in the American electoral system, they also would do much to promote civility between all but the most rabid Democrats and Republicans.

That would be a great service to this country.

UPDATE: Apparently I had misinterpreted this article a bit, so allow me to state my personal position on Gore's legacy. Gore's legacy is one of opening the door for partisan litigation of election results. The way he sued was wrong. He sued only to count a specific type of misvote in only four counties, terms he believed favored him. This deviation from merely trying to ensure all votes are counted has tainted the public's view of what such electoral litigation should be. Further lawsuits could be disastrous for our democratic process, because many will assume that it is going to be a hopelessly biased recount. If Gore had gone about it the right way, there would be no such suspicion now, and representative democracy as we know it would have remained relatively worry free.

6 Comments:

At 10/30/2004 3:46 PM, Blogger David Schraub said...

I'm not convinced. First of all, the post-election media analysis on 2000 yielded mixed results. There were some methods that would give Gore the presidency, others Bush. The "bombshell," if you will, was that if the votes were counted the way Gore requested them to be, Bush would still win. But that doesn't necessarily mean Bush won the most amount of votes. My views on 2000 were that more voters walked out of Florida polling booths BELIEVING they had voted for Al Gore. Whether or not any type of recount effort could have borne that out is unclear. But in some sense it is irrelevant. The important thing is that all voters can legitimately believe their voice was heard, and in Florida, they couldn't, and that was the tragedy of 2000.

Second, the reason that many democrats still refuse to accept the legitimacy of the 2000 election isn't because lots of lawsuits happened, its because they don't feel the votes were counted (and they were right, regardless of how the end tally would have eventually turned out). If we REALLY wanted to talk about uniting America, then what GWB should have done is immediately agreed to have a full manual recount of all Florida votes. Canada always manually recounts its votes, it manages to do it in the space of a day or two. If both candidates had agreed to a full statewide recount, much unpleasantness could have been avoided. And since you think that Bush really did have the most votes, he had nothing to "fear" from such a count. The question is whether we choose to unite in order to count all the votes, or we unite to accept a flawed process and an outcome whose legitimacy is uncertain. I choose the former, Bush asked us to choose the latter, and thus conflict results. But I think that it is Bush at fault for causing this conflict by standing in the way of democracy.

Third, democracy is a sacred institution. November 2nd, less so. The important part about a democracy is that the people vote, their voices are heard, and the majority (or pluarality in this case) decides our next leaders. ANYTHING that moves us closer to that ideal, regardless of whether it causes a tad bit of inconvienance to election officials (again, in this case we could have finished in a few weeks if nobody had protested) is something I'm willing to take. But Al Gore shouldn't criticized for trying to make sure the democratic will was upheld. The are higher values at stake here than a blind hatred of lawsuits, and I think the "national interest" was in seeing that the winner actually became the president.

When people feel as if their votes are not counted, that has a slew of negative impacts on democracy at large. It depresses future turnout, gives rise to conspiracy theories based on racism or partisanship, reduces our faith in elected officials, and harms American legitimacy around the world. To say that those harms are outweighed by not knowing our president until December 1st strikes me as deeply legalistic and unthinking.

 
At 10/30/2004 9:54 PM, Blogger Randomscrub said...

First:
The main problem with the argument about people "BELIEVING they had voted for Al Gore" or any other candidate, is that there is no way to protect people from their own inability to read the ballot or ask an official there. If they believed that they had voted for someone, but failed to punch the right hole, it is not a problem that a lawsuit will handle. Admittedly, that style of ballot is a bit confusing, but the argument that it somehow disenfranchises people I find hard to swallow. The entire point of using the butterfly ballot is to be able to fit more candidates on the ballot, which I would see as a tradeoff (not an even one, apparently, but definitely not malicious).

Second, you said:
"If we REALLY wanted to talk about uniting America, then what GWB should have done is immediately agreed to have a full manual recount of all Florida votes... And since you think that Bush really did have the most votes, he had nothing to "fear" from such a count. The question is whether we choose to unite in order to count all the votes, or we unite to accept a flawed process and an outcome whose legitimacy is uncertain. I choose the former, Bush asked us to choose the latter, and thus conflict results. But I think that it is Bush at fault for causing this conflict by standing in the way of democracy."

There is truth to that, I will admit. But Gore is the one who sued not to manually recount all votes, as I would have supported, but to merely recount the undervotes in only four counties. He sued to recount the election results under terms he believed to be favorable to his chances of winning, not favorable to the system of representative democracy.

Third:
See #2. This argument fails because Gore was not "to make sure the democratic will was upheld." If he was, he would have demanded the count of all votes in all counties and all the absentee ballots, not merely a certain type of vote in a certain place that should (as he thought) swing the election for him.

Conclusion:
There were errors on both sides, by not immediately seeking a full manual recount, but I believe that by his attempts to count only the votes that favored him, Gore did far more to make "people feel as if their votes are not counted" (i.e. the thousands of military ballots his lawyers attempted to disqualify) than Bush has. Would you give Bush the benefit of the doubt if he had sued for a recount in New Mexico, where he lost by 366 votes? I somehow doubt you (or I) would, if he had pursued it by asking for a recount only in a format that favored him, like Gore did.

 
At 10/31/2004 12:08 AM, Blogger David Schraub said...

You and I are in surprisingly substantial agreement here(amazing how intelligent liberals and conservatives actually can do that at times!). I agree that Gore's decision to only ask for recounts in specific counties, as opposed to statewide, was not only tactically stupid but morally wrong. And you're also right that no amount of recounting could solve the problem of butterfly ballots (I'm talking more about hanging chads, and overvotes in places like Lake County). And reading through my comment, I never said that "Gore did it right." I just opposed the philosphical stance that the SD-UT appeared to take that I thought was diametrically opposed to democracy. The editorial doesn't condemn Gore's specific tactical faults (which deserve protest) but the idea of lawsuits and recounts at all, which I think is dead wrong and far more harmful to democracy as a whole than anything Gore did.

One thing, though, that bothers me is the double standard that seemed to be applied. I said at the time that, to be equitable in tallying the votes, we could do one of two things. We could either be very, very strict and objective, and only count the votes that strictly met the guidelines: IE, no hanging chads, no overvotes. But also, none of those absentee ballots you cite, because they were TECHNICALLY not legally cast. Before you jump on me, I doubt that they were fraudulant and fully believe that it was an non-malicious mistake, and that they should be counted. But if we take the broader, more inclusive approach in counting the flawed absentee ballots, then we need to do the same for all the other votes. The courts applied a different standard for votes that would benefit Gore and those that would benefit Bush, and that WASN'T fair.

Again, if we agree that both sides have faults in this case, then we are mostly on the same page. The article quoted, however, didn't take that stance. It was needlessly polemical and sought to assign blame to one side only. In addition, the specific act it condemns is one that you appear to now be ok with in your comment, that is, that it is legitimate to resort to the courts and other processes to make sure all votes are counted. This is groundshifting on your part, in the original post you say it is "Gore's legacy of litigation may be harming our democratic process." In otherwords, you are condemning the overarching theory, not the tactical problems and misapplication. In your comments though, you shift positions and appear to concede that post-election recounts are ok if they mean that every vote is counted. I'm glad you take that position (I agree with it), but that's NOT WHAT THE ARTICLE claims. If the legacy of Gore is that politicians try and manipulate post-election totals to their own gain, I agree that's a sad legacy. But if the legacy of Gore is that all the votes need to be counted, and if necessary we can legitimately sue to get it, then I think that is a fine legacy indeed. Apparently, the Union-Trib disagrees.

 
At 10/31/2004 5:34 PM, Blogger Randomscrub said...

Thank you for providing intelligent dialogue on this topic. It's nice to know that no matter how different our opinions can be at times, we can still agree on some things, and we can remain polite.

I must admit that I do not know if there was any attempt to organize a statewide recount before the litigation ensued, as you original comment seems to imply. If there was, then whichever politician refused it is wrong. The problem with Gore's legacy, as we agree, is that he sued only under terms that favored him. The problem, as I see it, is that he set the precedent not merely for litigation, but for litigation with the overt intent of changing the outcome in one's favor. He did not merely want to count the votes.

I apparently see his legacy a bit differently than you. I believe that he set a precedent for _partisan_ litigation. In saying that "Gore refused to accept that he lost Florida, that he lost the presidency, by so small a margin. He refused to put the national interest before his own selfish interest," I believe the SD-UT was right. I would have been far more explicit about HOW he did so, but I believe that the general point about litigation to change election results (not just counting all the votes) is correct. I too am now skeptical of any election based litigation, precisely because of what happened in 2000.

Upon further review, however, you may be right, in that it does seem to condemn all litigation related to an election... Allow me to state what I would have written (and thought he had implied): Gore's legacy is one of opening the door for partisan litigation of election results. The way he sued was wrong, and it has tainted the public's view of what such litigation should be. Further lawsuits could be disastrous for our democratic process, because many will assume that it is going to be a hopelessly biased recount. If Gore had gone about it the right way, there would be no such suspicion now, and representative democracy as we know it would have remained relatively worry free.

My apologies for my initial misinterpretation of this article. I inferred more than was there, and you have shown me that error.

 
At 10/31/2004 8:53 PM, Blogger David Schraub said...

Wow! Did a Democrat and Republican just agree on something? And only 2 days before election day? Someone should write an editorial on that!

In terms of Gore's legacy, I think we are in general agreement: The broad idea (that the courts are fair game in order to insure a fair, fully counted election) was right, the specific way he did it (IE, very biased in his favor) was very, very wrong. Hopefully, this won't taint ALL post-election suing, and I am quasi-optimistic that it won't, because all any politico has to do now is be clear that he wants ALL the votes recounted, rather than a select few. To the extent that partisanship will taint the process, well, partisanship is certainly not entirely Al Gore's fault. That, I think, is a manifestation of the hyper-polarization of American politics, and is tracable to many sources (Tom DeLay, Newt Gingrich, and Michael Moore all spring to mind). At any rate, Gore's partisanship (only count my votes) is no worse (or better) than Bush's (don't count any votes, since I'm winning). Both are equally harmful, but at least Gore at the general idea right, even if he badly butchered it in practice such that it almost entirely discredited the entire thing (Kinda like how I feel about Bush and Iraq, come to think of it!)

Perhaps the best solution is to mandate (as does Canada) manual recounts of all ballots immediately after the election. I'd also recommend that all election officials be non-partisan positions (today many are elected and are essentially party hacks).

Unfortunately, I do expect this election to be close and contested. I would hope that, in the interests of democracy, both parties agree to make a good-faith effort to see all the votes counted.

 
At 11/01/2004 6:12 PM, Blogger Randomscrub said...

We have basically agreed. Who'd have thought it was possible? Oh, and an amusing note: I am not technically a Republican, since Minnesota does not register its voters by party. I am, however, a member of the Valparaiso University College Republicans. Which also technically is not an official chapter until all the paperwork goes through. So I guess I'm just a Republican in spirit.

I am a bit more pessimistic about future litigation's taint. As you pointed out, the piles of absentee ballots in question in FL were not technically legally cast. Not being a lawyer, I am not sure, but I assume that there are at least a few similar loopholes that would allow a candidate to claim that he was trying to count all the votes in a legal sense without actually doing so in a meaningful sense.

I'm not sure how to avoid having partisan election judges. I am not technically a Republican, but am certainly a partisan, which is a distinction I doubt they can legally make. The best solution may be to have one from each party to keep an eye on each other. Preventing voter fraud, or in this case recount fraud, is a sticky situation at best, and so I am hesitant to recommend any changes. Manual recounts are open to abuse by partisans (how many chads were found on recount room floors?), but weeding out the partisans could prove impossible or unethical. I'm not sure how to proceed there.

I agree wholeheartedly that both sides need to make a good faith effort to allow the voting to be fair and completely counted. I refer you to my most recent post for more on that. It has been a pleasure discussing this with you, and I look forward to more discussions in the future.

 

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