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Thursday, Dec. 07, 2000

When it became certain that the contest in Florida was too close to call, and Americans had no President-elect the day after the election, jeers from around the world were heard. This mighty democracy had stumbled. After aggressively exporting democracy for much of the twentieth century and nosily overseeing elections in so many countries, we may have deserved the mockery.

The jeers have grown silent, though, as the world now waits, along with the United States, to see who, in fact, will be the next President. Why? Because this nakedly political contest for the most powerful position in the world has been peaceable, orderly, and, yes, lawyerly. There seems to be no limit to the vitriol the two sides can spew, but there are remarkable limits in the United States on the ability of that vitriol to transform the situation into a crisis. It is worth taking a moment to marvel at the constitutional scheme, and then to turn attention to the real culprits this time around: the people who have taken their voting privileges for granted.

That is because the Constitution is a marvel at channeling the passions of those who would grab power, as well as the passions of the masses who might support or oppose such a power grab. The Framers, especially the document’s chief architect, James Madison, were not sure that the constitutional structure would hold in crisis. But this crisis, and others, has proven its enduring strength.

How the Constitutional Structure Provides a Check on Power

The Framers were not content with a single check on any holder of power; rather, they layered multiple means of assigning and checking power into the Constitution. The Constitution is a much more complex document than most understand, and it is decidedly more complex than the thin version we sometimes attempt to export. In this election contest, one constitutional mechanism after another has driven the contest into constructive, rather than destructive, avenues.

The Role of the Separation and Assignment of Powers

By separating and assigning powers, the Constitution parcels out different tasks to the courts, the legislature, and the executive. It also places the courts — both state and federal — in a hierarchy, capped by the United States Supreme Court. This structure of separation and assignment of powers has expertly and mostly invisibly directed the flow of power — much as good architecture can expertly direct the flow of human traffic through a building — as each player in this election drama has taken on its appointed duties.

Consistent with the Constitution’s intent, each governmental branch, and each federal or state court, has had to account for whether it was carrying out its role in the constitutional scheme appropriately. For example, the Supreme Court on Monday asked the Florida Supreme Court to explain how it was acting appropriately when it extended an explicit deadline in the state legislature’s election law. The Court’s opinion sought to ensure that the Florida court’s actions were cabined by its proper role in the federal system, and by its proper role as a separate branch within Florida’s government, as well.

Similarly, when Katherine Harris, a member of Florida’s executive branch, certified the election, the question asked was whether she had the authority to do so. In other countries, she could have been threatened for either certifying the election, or declining to do so. But under the United States constitutional structure, the question that consumed public debate was the reach of her authority, and the test of that question found its way through the courts.

The Role of the Electoral College

Drunk as we are on the misapprehension that the Framers set into motion a direct — rather than a representative — democracy, the Electoral College has been given a good drubbing in this process, with pundits suggesting it should be abolished. But it is a valuable mechanism that mediates the election process, as this year’s contest proves.

Were there no Electoral College, we would not merely be waiting for Florida to finalize its tally; instead, we would be waiting for a national tally. Imagine the consequences if Florida’s chaos had been nationwide, and you may rethink whether the Electoral College should be abolished, after all.

The Role of the System of Federalism

The Justices stood at a crucial point in history, at the apex of their potential influence, with the ability to grasp the power to determine the outcome of the election if they so chose. The media kept billing the Court’s decision as though it were the endgame; the pollsters kept asking about it that way; and indeed, if the Court had simply held that the manual recounts were invalid, an endgame it would have been. (Checkmate: Bush)

But the Justices chose unanimously to take another path, and to follow their entrenched rule of deferring to state supreme courts on the meaning of state law. Instead of assuming that the Florida Supreme Court had acted unconstitutionally, and instead of presuming knowledge of the reasons that grounded the court’s decisions, the Justices avoided a rush to judgment. Thus, they asked the Florida court—in a brief opinion and in moderate tones--to explain its decision to extend the deadline for certifying the election, in the context of the federal principles the Court laid out.

The opinion aimed to ensure that the Florida Supreme Court acted within its proper sphere, consistent with Constitutional federalism. At the same time, it also exemplified the U.S. Supreme Court’s acting within its proper sphere, consistent with Constitutional federalism. It made clear that overreaching — on either the state or the federal level — would not, and should not, occur.

The Role of the Judiciary and the Rule of Law

As this election contest has shown, even raw political contests can be worked out in an orderly fashion, when the issues are channeled through the courts under the rule of law. Litigators have become our gladiators — representing the passions of those who would assume power, which otherwise would have had no constructive outlet, but representing them not with violence, but with argument, in impartial tribunals where the contest is measured against the law. The judges and Justices deciding the election’s many controversies not only have taken on difficult issues in the glare of the public’s scrutiny, but they have also done so with dignity and with dispatch.

The Role of the First Amendment

What will we recall of this election fight, when one of the two candidates has finally taken office? Though there have been many memorable scenes in Florida, there has been none so memorable, I would suggest, as one in Washington, D.C., in front of the Supreme Court last Friday.

On the left were the Bush supporters, on the right were the Gore supporters, and in between was a rectangle of space. The balance of passion and reason was perfect, and it was achieved because the First Amendment protects the right of opposing sides to protest, but permits the government to use common sense in avoiding conflict and violence by creating safety zones like that rectangle.

The Role of the Press

The Crisis, If Any, Is With the People, Not the Constitution

In short, the Constitution’s means of assigning, dividing, and dispersing power have constructively channeled ambitions’ drive during these long weeks since the election. It is they that have created the conditions for the calm, wait-and-see attitude that now envelops the world. James Madison’s despair that the structure would never hold has been shown, in this instance, to be an unjustified dark moment. And there are Constitutional mechanisms to ensure an orderly transition of power that still have yet to be triggered; the Twelfth and the Twentieth Amendments provide for instances where there is a tie in the Electoral College, or there is no choice of President by January 20.

To marvel, though, is not to be a pollyanna. There is blame to go around and it belongs to the American people, and their representatives in virtually every state — who have taken the right to vote for granted, and who have not demanded better and more reliable technology to record their votes.

Under our constitutional scheme, the people do not rule, but they do choose who will. It is the people’s only moment of direct control in the process. To treat it cavalierly is to invite the situation we find ourselves in today. Over and over, we have heard about antiquated voting machines in many jurisdictions. Why have so few jurisdictions bought new and more reliable machines? Because representatives assumed that the people would never agree to a tax increase to pay for new voting machines. Use the old ones, they said; they have always worked in the past. But in fact, they have not.

Vice President Gore keeps saying that every vote (clear or otherwise) ought to count, but the people have not made the recording of their votes a priority. Palm Beach County, for example, was fully aware that it was employing an imperfect system—indeed, a system so imperfect it meant thousands of votes were discarded in the last election—and yet the county decided not to invest in new equipment. We can be certain that Palm Beach County does not stand alone on this score, either in its ballot design imperfections or in its poor vote tallying machines.

The fundamental right to vote does not encompass a constitutional right to be lazy or cheap. It is as much a responsibility as it is a privilege. Just as it is difficult to feel sorry for voters who simply fail to vote, it is also difficult to muster sympathy for those who do not complete a ballot (assuming they intended to), or who have failed to urge their representatives to keep the machines that record their votes on the technological cutting edge.

As we all know, lawsuits have challenged the Florida vote count based on a myriad of complaints — for example, that voters could not understand the ballot; that voters had not fully punched out a chad at the Presidential level (even though they succeeded with every other elected office); and that the machines were imperfect. But these complaints, targeting ballot designers and voting machines, are only a diversion from the real culprits. The media and the politicians will never tell us this, because we are their consumers, but the truth this time is that we the people are at fault.

Marci A. Hamilton is Visiting Professor of Law at the New York University School of Law. Her e-mail address is

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