Afterword: Can a Coin-Toss Election Trigger a Constitutional Earthquake?
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Electoral politics looks considerably more impressive when observed from a filmy distance than when examined under a microscope. American democracy's inherent disorders and defects, it turns out, extend beyond abysmally low turnout, candidates manufactured by advertising agencies, and campaign financing shenanigans. The 2000 presidential election, in particular, revealed that a virtual draw in a winner-take-all contest assigns ultimate decision-making power not only to untypical swing voters (an outcome that is undemocratic enough) but also to unavoidable inaccuracies in the tabulation of ballots. Even if the hand recounts in Florida had been conducted more scrupulously and thoroughly than they were, the difference in votes between the two candidates would have remained statistically meaningless, that is to say, would have been less than the margin of error. Where the electorate is evenly divided, the identity of the U.S. president, who happens to hold the fate of the world in his hands, can be settled only by the flip of a coin. Imaginative attempts have been made, in this volume as elsewhere, to attribute some deep meaning to this underlying fortuity. Partisans on both sides have treated the intense polarization of the post-election circus, culminating in Bush v. Gore, as if it mirrored the state of the polity more accurately than the mind-numbingly bland campaign that preceded it. And the post-election rekindling of the same partisan passions that, a year before, had inflamed the struggle over impeachment, where law was manifestly subordinated to politics, gives some plausibility to this search for a deeper level of significance. Did not partisan politicians, unable to prevail at the ballot box, once again resort to highly malleable law, wielding it as a weapon to rout political foes? The most incendiary, and not entirely implausible, way to elevate the post-election contest into a portentous showdown between rival worldviews has been to interpret it as a reprise of the battle for and against black enfranchisement. No one can plausibly deny that a poor black man is less likely than a rich white one to receive a fair trial in the United States. Before Florida 2000, however, most Americans imagined that the battle to extend the franchise to African-Americans was a thing of the past, largely resolved by the passage of the Voting Rights Act of 1965. But the nearly forgotten struggle against racial restrictions on the suffrage resurfaced rudely in the 2000 election, and not only in the legally questionable scrubbing of “possible felons” from voter lists. Although only 11 percent of Florida voters are black, 54 percent of the spoiled ballots were cast by blacks. Democrats make much of such statistics. They do so because the tendency of Republicans to glamorize private initiative and denigrate government is not as immaculately race-neutral as it initially seems. In practice, the Republican predilection for purchasing private prosperity at the price of public squalor implies not so much an across-the-board as a selective defunding of public institutions. In poor black counties with a small tax base, antiquated voting machinery effectively dilutes the power of voters to influence the electoral outcome. In the aftermath to the 2000 election, the exasperation of African-Americans at minor episodes of disenfranchisement was quickened by sarcastic Republican comments, uttered with a social Darwinist edge, to the effect that voters themselves are responsible if they fail to follow written instructions. In affluent white counties, superior machinery and more professional poll watchers alerted voters who did not follow instructions to correct their mistakes on the spot. This suggests that, rhetoric aside, partisan Republicans are fully aware that the exercise of individual rights, such as the right to vote, depends critically on public expenditures. The reason they deny this publicly may not be intellectual incoherence and ignorance of political theory, therefore. Rather, they may simply hope to benefit from public expenditures themselves while starving the public institutions that give reality to the rights of others, including black Americans, who overwhelmingly tend to vote for the opposite party. Their strategy, if this analysis has any merit, is fairly simple: to fortify the castle of the strong, it helps to enfeeble the siege equipment of the weak. That diverse levels of spending on voting technology, which must be kept in good repair and up-to-date by public expenditures, may have a significant discriminatory effect, is one of the unexpected lessons of election 2000. Thus, in optical-scanner counties, only 1 percent of the ballots registered no presidential selection, whereas 4 percent of the ballots in punch-card counties registered no choice. Such a differential strongly suggests that the rate of ballot invalidation can be reduced by public investment in better equipment. Contrariwise, an existing asymmetry that broadly favors Republicans can be consolidated, intentionally or inadvertently, by “reducing spending to balance the budget.” Exclusively local funding of vote-tabulating machinery turns out to promote the unequal distribution of American citizenship itself.
Source Publication
The Unfinished Election of 2000
Source Editors/Authors
Jack N. Rakove
Publication Date
2001
Recommended Citation
Holmes, Stephen, "Afterword: Can a Coin-Toss Election Trigger a Constitutional Earthquake?" (2001). Faculty Chapters. 805.
https://gretchen.law.nyu.edu/fac-chapt/805
