{"id":53099,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/something-rotten-in-the-state-of-france.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"something-rotten-in-the-state-of-france","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/something-rotten-in-the-state-of-france.html","title":{"rendered":"Something Rotten In The State Of France"},"content":{"rendered":"\n
\n \n
\n
\n \n \n \n \n \n\n \n \n
<\/a><\/td>\n

SOMETHING ROTTEN IN THE STATE OF FRANCE:
How An Electoral System’s Hidden Flaws Let Le Pen Play The Spoiler <\/h1><\/td>\n <\/tr>\n

By DEAN G. FALVY<\/h2><\/a><\/td>\n <\/tr>\n

Thursday, Apr. 25, 2002<\/td>\n\n <\/tr>\n <\/table>\n

No one ever said running France was an easy job. Even the indomitable Charles de Gaulle once asked, “How can anyone govern a nation that has two hundred and forty-six different kinds of cheese?”<\/p>\n\n\n\n

French voters served up a wedge of the stinky stuff on Sunday. Apparently bored with the stale prospect of a re-run of the 1995 race between incumbent President Jacques Chirac and Prime Minister Lionel Jospin, they carved their votes up among a baker’s dozen of alternative candidates.<\/p>\n\n\n\n

The resulting mess allowed perennial far-right demagogue Jean-Marie Le Pen to slip into second place – setting himself up for a May 5 run-off against Chirac. The 74-year-old Le Pen had little new to add to his usual noxious stew of nationalism, xenophobia and populism. He is notorious for calling for the expulsion of immigrants and dismissing the Nazi gas chambers as a “detail of history.” Yet he is now a finalist for the presidency of one of the world’s most enlightened nations. How did it happen? <\/p>\n\n\n\n

The Appearance of a Shift to the Right Was Deceiving<\/b><\/p>\n\n\n\n\n\n\n

The shock waves from Sunday’s vote go far beyond the humbled prime minister and his stunned partisans. Aside from Le Pen’s giddy band of supporters, the French went to bed upset and woke up nauseous. The same citizens who, 24 hours earlier, had voiced a distinct lack of appetite for the race, saw what choices were left on the plate and looked around for someone to blame. <\/p>\n\n\n\n

Some marched in the streets against Le Pen’s National Front; others fulminated against the divisions on the left that cost Jospin critical first round votes. Newspapers searched for ever-stronger seismic metaphors to describe the ravaged political landscape. For many, the vote marked a collapse of the vulnerable souffle of French self-confidence. <\/p>\n\n\n\n

Had the French really lurched to the extreme right? The answer, fortunately, is non<\/i>. Despite all the hand-wringing in the press, the numbers indicate that the extreme right increased its support only marginally.<\/p>\n\n\n\n

Le Pen marshaled all of 16.9% of the vote, behind Chirac with 19.7% and just ahead of Jospin at 16.1%. It was a decent outing for the burly former paratrooper, but not spectacularly better than he did in 1995 (15.0%) or 1988 (14.4%). <\/p>\n\n\n\n

Significantly, this year’s turnout fell six points from 1995 to a record low of 71% (though still robust by American standards). Le Pen may have succeeded not so much by attracting new supporters, as by motivating his old ones to show up at the polls while others stayed home.<\/p>\n\n\n\n

\n\nThe Real Causes of the Debacle<\/b><\/p>\n\n\n\n

So what went wrong? Undoubtedly the ennui and cynicism of the public, nourished by the media, played a major role. The experience and familiarity of the main candidates began to be perceived as liabilities rather than strengths–a routine trope of American political life, but a novel one in France. <\/p>\n\n\n\n

In part, the electorate’s apathy was understandable. Five years of awkward power-sharing and backbiting between Chirac and Jospin had made Clinton and Gingrich look like a synchronized swimming team by comparison. Their exhausting rivalry probably accounted for both Chirac’s record low score for an incumbent president, and Jospin’s dismal showing despite the fact that he had been, by most accounts, a remarkably effective prime minister.<\/p>\n\n\n\n

But the failure was institutional as well. The Fifth Republic’s electoral system, after serving up credible results for forty years, experienced a meltdown on Sunday. It had nothing to do with hanging chads or counting ballots. But it was a design flaw nonetheless. The system’s very inclusiveness rendered it vulnerable.<\/p>\n\n\n\n\n\n\n

Before Sunday, the French had reason to believe that their recipe for electing presidents was among the best in the world. A short campaign season (usually three months or so) led to intense debate. Ideas, experience and dedication mattered more than money and advertising. Politicians avoided personal attacks, and their private lives were strictly off-limits.<\/p>\n\n\n\n

Moreover, the ballot was open not just to party nominees, but to any candidate who could muster the signatures of 500 elected officials nationwide. Plus, the candidate who got the most votes always got to be president. (This didn’t seem so remarkable in a democracy, until the U.S. proved otherwise). <\/p>\n\n\n\n

Most importantly, by holding two rounds of voting, the French seemed to have solved the tough problem of how to get decisive results from a multi-party system. The first round allowed voters to express themselves, to vote their consciences and support pet causes, without ever worrying that they were throwing their franchise away. <\/p>\n\n\n\n

Then the second round run-off, matching the top two finishers (usually one from the mainstream left and one from the mainstream right), gave the electors a second bite at the apple. They could put on their practical caps and choose the lesser of two evils, if necessary.<\/p>\n\n\n\n

The system was a boon for third party candidates, who could appeal for symbolic votes without having to prove they could win the election. But it also helped the major party candidates, who could cobble together a majority (and a mandate) from their rivals’ supporters in the second round. <\/p>\n\n\n\n

The two-round system ensured that, unlike any U.S. president since 1988, the winner of a French election would necessarily emerge with the support of at least 50% of those casting votes, with all the legitimacy that entails. (Surely the 90,000 Floridians who voted for Ralph Nader in the last U.S. election would have appreciated that second bite. Al Gore would have been even more happy to dish it up to them.) <\/p>\n\n\n\n

But this year, the system that had seemed so successful in the past suddenly went terribly wrong – resulting in the inclusion of Le Pen, a candidate with both limited support and hateful views, in the runoff. How did it happen?<\/p>\n\n\n\n

Too Many Candidates Spoiled the Broth<\/b><\/p>\n\n\n\n

The French were expecting this year’s election to be like any other: a complicated free-for-all in the first round, followed by the usual razor-thin left-right split in the second. Disdaining the predictable, voters scoured the menu for creative alternatives, never doubting that they would have a palatable candidate to settle for in the second round.<\/p>\n\n\n\n\n\n\n

Leon Trotsky never had a better day at the ballot box, at least not since he met up with the wrong end of an ice pick in Mexico in 1940. For Lionel Jospin, it was a death from a thousand cuts–and for the French left as well. <\/p>\n\n\n\n

A similar, though less fatal, fragmentation also affected the right. In addition to Chirac’s 19.7%, three center-right candidates attracted 6.8%, 3.9% and 1.2% of the vote, respectively. A candidate representing France’s hunters bagged an impressive 4.2%. Had there been a few more aspirants crowding in on the right, the chaussure <\/i>might be on the other foot – with Jospin facing down Le Pen, and Chirac and his supporters left out in the cold.<\/p>\n\n\n\n

When contrasted with such a smorgasbord of candidates, the two-party system, with its wearisome primaries and endless coalition-building, no longer looks quite so bad. Clearly the openness of the French system to fringe candidates, coupled with the vulnerabilities of the principal contenders, provided an opening for the Le Pen. But more than that, it was the illusion<\/i> of a consequence-free vote in the first round that led the French to squander their franchise carelessly. In the U.S., by contrast, with only one vote to cast in the general election, voters know there is no dress rehearsal. (Whether they always act responsibly on that knowledge is another question.) <\/p>\n\n\n\n

Springtime For Chirac, Winter For Democracy in France<\/b><\/p>\n\n\n\n

The result in France is a final round that does not represent a choice at all. The left will be forced to join the moderate right in backing the incumbent. Chirac’s die-hard left-wing opponents have been lining up to give him endorsements that would have been unthinkable before Sunday, if only to avert the even less imaginable alternative of a Le Pen presidency. <\/p>\n\n\n\n

Fortunately, there is no chance that Le Pen will win or even come close. An able opportunist, Chirac has already jettisoned his law-and-order talk from the first round and positioned himself as a defender of pluralistic values. He is expected to crush Le Pen on May 5th<\/sup> with upwards of 70% of the vote, a margin unprecedented in the history of the Fifth Republic. <\/p>\n\n\n\n

The left will have no choice but to swallow hard and watch the incumbent feast on another term. It’s yet another remarkable stroke of luck for Chirac, in a career light on real achievements. <\/p>\n\n\n\n

For French democracy, the news is not so good. The system failed to do what it’s supposed to do: narrow a broad field down to two competitive, competent, representative candidacies. The second round will be a circus, a coronation, and perhaps a civics lesson, but not a serious contest. <\/p>\n\n\n\n

Le Pen’s defeat, if sufficiently decisive, will mitigate some of the bitterness. But the lack of a real race in the second round will raise the question for years to come: Who exactly elected the French president, and when? <\/p>\n\n\n\n\n\n\n

Perhaps no democratic system is foolproof in the face of widespread apathy. Fortunately, there is no better cure for apathy than its consequences. Surely, the French will take their civic duties more seriously the next time around. In the meantime, a foul stench will linger over the Fifth Republic, like the odor that still occasionally wafts our way from Florida. <\/p>\n\n\n\n\n\n\n<\/span>\n\n

\n

\n\n\n<\/a>\nDean G. Falvy, a graduate of Yale University and Harvard Law School, is an attorney focusing on corporate and international law.\n\n\n

\n\n<\/p>\n <\/div>

\n \n Was this helpful?<\/span>\n \n Yes<\/span>\n \n \n \n <\/path>\n <\/g>\n \n \n <\/rect>\n <\/clipPath>\n <\/defs>\n <\/svg>\n <\/i>\n <\/button>\n \n No<\/span>\n \n \n \n \n <\/g>\n \n \n \n <\/clipPath>\n <\/defs>\n <\/svg>\n <\/i>\n <\/button>\n <\/div>\n <\/span>\n