The U.S.A. Constitution Worked Well
Were the recent election court actions and recountings a sign of constitutional failure, or of success? On a scale of A through F, A being excellent and F being a failure, I grade it a B for good.
by Fred E. Foldvary, Senior Editor
It has been widely noted that in many countries such a close election as the US experienced in 2000 would have led to riots and violence, but that would reflect more on the political culture of the society than its institutions and constitutions.
Looking just at the political process of there being a close vote both in the USA and especially in Florida, and the consequent court cases that went back and forth through various appeals, the US Constitution was successful in providing an outcome and also in the outcome being largely accepted by the politicians and citizens. There was no Constitutional crisis or failure.
Many citizens don't agree with the outcome or the decisions of one or more courts, but that is true for many court decisions. The Constitutional problem would arise if some government agency went significantly beyond its constitutional powers. That did not happen, and to the extent that, say, the Florida Supreme Court went beyond its authority, the US Supreme Court was able to curtail it. The checks and balances built into the federal system and the division of powers among the government branches worked well.
The key problem in election 2000 was that the presidential election ended in a statistical tie. As we have learned, our votes in most counties are not counted individually and precisely, but are a statistical outcome within some tolerance. The machines do not count each ballot exactly, but often miss some, and the number that the machines output is an approximation.
When the election is very close, the difference in the vote outcome is smaller than the statistical tolerance, which means that the reported winner was arbitrary. It could have gone the other way. It is little wonder that the election is then thrown into the courts. Even a hand recount is not totally accurate, because the counting is subjective, depending on how one judges badly marked ballots, as we have seen with the dimpled chads, those bits of paper that should have been punched out, but were not.
One major problem was some citizens were reportedly prevented from voting. There are claims that in Florida, some African Americans were unable to cast ballots because the officials blocked access or did not accept their registrations as valid. Those officials who were responsible for preventing such voting should be penalized.
Another problem was foreign mailed ballots that had no postmark. Ultimately, the responsibility for the military rests with the Commander in Chief. When he takes office, President Bush should ensure that all military mail is postmarked, whether the mail is for ballots or otherwise. It is just sound postal practice to put a postmarked date on all mail as a document.
These were government failures, but not Constitutional failures. Each of the actors in the post-voting maneuvering - the candidates, the political parties, the Florida legislature, the Florida courts, and the Supreme Court - acted within Constitutional limits. The process worked well as decisions were overturned in accordance with the legal framework. Each political party tried to use the system to its advantage, but none attempted to hijack the system itself.
The fact that the Constitutional process functioned well indicates that we need to be careful in attempting reforms. For example, an election purely by popular vote could lead to even worse problems in a very close election - what would we do, hand-recount the votes in every county? We were fortunate that the mess was confined to just one state rather than the whole country.
However, my grade of B indicates that there are some reforms that could improve the voting system in the USA. First, we need to replace paper ballots with electronic voting that would indeed record votes accurately, but with paper ballot printouts as a check. Electronic voting would enable citizens to vote anywhere in their county rather than just in one particular precinct, avoiding the problem of blocked access.
Secondly, the electoral college should count votes within the states proportionately rather than winner-take-all. This could be done by selecting the Electors within Congressional districts, or else by apportioning the total state vote among the candidates. In Florida, the electoral votes would have been split among the two candidates, avoiding the high stakes that led to the court actions.
We should indeed assure that all who want to vote can cast a ballot and that each vote is truly counted accurately. But given mass democracy, the founders the Constitution of the United States of America did a fine job in creating the system of federalism and divisions of power that enabled the system to resolve what was in effect a tied election with an arbitrary outcome. We should also be happy that the candidates and parties have accepted the outcome, which shows that we do have a constitutional republic after all.
-- Fred Foldvary
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Copyright 2000 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.