Christopher Caldwell: An election for the lawyers

By Christopher Caldwell

Financial Times

Published: October 23 2004

There was always a Democratic explanation and a Republican explanation for the electoral debacle of Florida in 2000, which resulted in a 36-day ordeal of litigation and vote recounting, and has dogged George W. Bush with allegations of illegitimacy ever since. Democrats claimed that access to ballots had been systematically restricted and that vote counting was suspect - but independent studies have found scant evidence of any such irregularities. Republicans thought the only problem in Florida was that Mr Bush's margin of victory was less than the margin of error. This, at least, was true, but so was the complaint that Mr Bush had only the electoral-college system to thank for his win, having garnered half a million fewer votes nationwide than his opponent, Vice-President Al Gore.

Both parties had one thing in common: they thought that the deadlock, which pitted Florida's legislature against its courts and was resolved only by a decision of the US Supreme Court, was a once-in-a-lifetime political event, arising from an extraordinary interaction of circumstances.

Maybe they were wrong. Thanks to a dubious referendum in Colorado, balloting irregularities in Nevada and Wisconsin, and lawsuits that have already been filed with the highly politicised Florida Supreme Court, the possibility of another judicially decided contest looms ever larger. There is reason to worry that the election problems of 2000 were not a bizarre accident but merely the first crisis of what is now a structural flaw in the US political system.

For years, American society has been evolving towards abject dependence on the judiciary in all walks of life. For instance, the US, alone among western countries, does not have a (legislated) abortion law - what it has is a 30-year-old Supreme Court ruling that forbids the states to set limits on abortion. Legislators of both sides are thus spared the need to admit having ever compromised on the issue. Gay marriage is now being established in exactly the same way. Courts have become pseudo-legislatures in the US, and their responsibilities have recently begun spilling over into elections. American voters have been content to see judges overturn referendums.

The clearest indication that Americans have resigned themselves to a big judicial role in elections is the sudden popularity this season of weblogs devoted exclusively to election law. The most prominent of these, www.electionlawblog.org, directs readers to the dozens of articles that appear daily on the legal issues surrounding the election. There you can discover that, in Texas, 39 per cent of voters in the 32nd District consider the boundaries of their district, which were redrawn by Republican legislators amid court battles, "mostly unfair". Or that Republicans may sue to find out whether new Democratic voters in New Mexico are even citizens. Or that swing states such as Wisconsin and New Hampshire may have extra leeway in providing "provisional ballots" that are ordered in the federal Help America Vote Act of 2002.

Among this year's invitations to legalistic mischief, Colorado's Proposition 36 is in a class of its own. If passed, it would change the basis for allocating the state's nine electoral votes from winner-takes-all to proportional representation. Colorado has every right to do this. But it does not have the right to do it this year - that is, to hold an election in which the rules of the election are subject to post facto revision. The referendum also violates a constitutional principle upheld by the Supreme Court in Bush v Gore: that only state legislatures have the right to choose electors. Colorado's measure is transparently aimed at damaging Mr Bush, since Republicans tend to carry Colorado. Moreover, it is foolish - and not just because it diminishes Colorado's influence on the national stage. Had proportional representation been in place nationwide in 1996, it would have resulted in a hung election decided in the Republican-controlled House of Representatives. Bob Dole would have been named president, despite having lost to the incumbent, Bill Clinton, by 8m votes. Should the Colorado measure pass, and should the victor there lose the presidency by fewer than nine electoral votes, a president picked by the Supreme Court would be guaranteed.

A great deal of cant is being uttered about the civic heroism of election monitors and legal watchdog groups in the upcoming contest - particularly by those in the Democratic party, which commands the loyalty of the vast majority of American lawyers. Elliott Mincberg, a lawyer with the left-leaning People for the American Way, has defended the PAW-endorsed Election Protection coalition by saying: "The goal of this programme is to restore our faith in the democratic process and to make that process work." But one could argue just as well that the goal of such groups is to undermine faith in the democratic process and to ensure a special supervisory role for the nation's lawyers. When John Kerry boasts that his campaign has sent a "multiracial dream-team of lawyers" around the country to protect voting rights, he is implying two things. First, that his opponents are a bunch of racists. And, second, that the best protection against them is to be found not at the ballot box but in the courts.

Washington was abuzz this week over an article in the Associated Press that described the scale of the Kerry team's courtroom effort - which includes 10,000 lawyers, planes chartered to rush litigators around the country on election night and a public-relations strategy whose goal "would be to persuade voters that Kerry has the best claim to the presidency and that Republicans are trying to steal it". This account gathered from Michael Whouley, who will direct post-election legal strategy for Mr Kerry if necessary, is disheartening. Because what if Mr Kerry does not have the best claim to the presidency? Shouldn't the question of whether the election is stolen or not be left in the hands of people other than partisan litigators?

Apparently it cannot be. At least not now that the electoral system has grown so complicated that only lawyers and judges are permitted to unravel it.

The writer is a senior editor at The Weekly Standard