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Commentary on the Florida election by Sheldon Leader '64

Large- or Small-Blanket Democracy in the US: Which Will It Be?

Sheldon Leader '64
Professor of Law; Member of the Center for Human Rights
University of Essex, UK

December 2, 2000

The US is at a turning point. Depending on the next developments, one of two images will stick in the minds of Americans and of many others around the world as they look at the person standing on the inauguration podium. They will either think of the mob in Miami having done its best to shut down further efforts to count votes; or they will think of judges and others trying to extract via impartial solutions a result that all can then be called on to respect. The hard part, in trying to steer clear of domination by mob rule, is to decide just what impartiality requires in these difficult circumstances.

We are familiar with situations in which the rules for conducting elections are set beforehand and the election is played out according to them; but we are far less familiar with situations in which neither the election results nor another look at the rules yields a clear way of breaking a deadlock. Everyone involved then has to work at both ends at once: adjusting rules and re-examining the results to reach a clear and accurate result.

Make no mistake: both sides want to change the rules in trying to reach a result. Both press the judiciary for a reading of the law that they claim, with hand on heart, to be faithful to its spirit - while at the same time offering their own particular revisions. George Bush's Supreme Court petition does this; the drift of his argument is to keep to the existing Florida law setting tight time limits for the submission of ballot results, but please find unconstitutional Florida law that presently allows canvassing boards to wide discretion in deciding the meaning of marks on the ballot paper. The Democrats want to adjust in the opposite direction, also in the name of constitutional principle. They want a reading that loosens the time limits on submission of returns while holding on to the existing relatively wide scope the boards have for setting interpretive standards. The further stages in the litigation, as Al Gore this time tries to kick start the hand recounts again, will broadly raise the same pair of opposed positions.

There are gains and losses whichever way one turns. Machine counting that fits the time limits excludes some voters who deserve to be included; and the human count, pushing against the time limits, risks including some voters who deserve to be excluded.

While this is a confrontation, it is not an impasse. There are competing visions of democracy at stake, ready for choice. It is a choice that other countries can and do confront. The choice distils itself into in the option of reliance on machines and reliance on human judgment for results. The fairness secured by machine uses definite criteria fixed in advance of any hard case for acceptance or rejection of a ballot. The results are clear, quick and consistent. The second sort of fairness navigates in a very different terrain. It is ready to cut its moorings with rules since the rules are straining to achieve a result that voters who intend to vote a particular way will have their voices heard. But since the result is what counts, says this position, if we have independent reason to think we are wide of the mark, leaving many voters out in the cold, then the rule has run its course and ought to be supplanted by human judgment.

Both positions can legitimately claim to be faithful to the rule of law. The first holds to clear rules for guidance, while the second says that however finely you tune the rule, you won't be able to fix in advance all of the cases that ought by law to be brought within it. The Florida Supreme Court was clearly drawn to the second position: not only did it refuse to let mechanical rules supplant human judgment, it also refused to tell those making those judgments which standards they had to follow. That makes sense: once it was decided that discerning what a voter intended to do on a particular ballot paper is best carried by exercising judgment in particular cases, then it would hamper rather than help that discernment by laying down a fresh rule adopted in advance of all sets of fresh facts.

The pivotal issue becomes, do we trust the relevant officials to do their job impartially, or do we retreat back to the impartiality that the machines offer? This is not just a choice for the US Supreme Court: it is a wider choice of many citizens - sensing that they need to live with one another after a solution is found.

Can fellow citizens, the officials doing the hand recounts, be relied on to be impartial? The quick answer, on the lips of many, is that of course they cannot. Once you allow these people to have room for personal judgment about borderline cases, you can be sure that they will tailor that judgment to achieve the results they want. That will be the argument, couched in polite legalese, before the Supreme Court. These skeptics have the endorsement of certain public intellectuals, such as Prof. Stanley Fish. He wrote recently in the New York Times that in situations such as these we should not even worry about our officials failing to be impartial. There is no such thing to be had as principles standing above politics. To think otherwise is, in his view, to pursue a mirage.

A society falling for this sort of outlook easily adopts what we can call the small-blanket view of politics and law. The parties tug endlessly on principles that cannot cover all of us. Each hopes to be lucky, or smart, or impassioned enough to steal the blanket from their adversary. It is a view that has little time for people taking a more generous view: patiently trying to solve problems by standing away from these feelings long enough to do their work as tax inspectors, teachers marking exams, judges high and low, or election officers. Such a society may grudgingly allow these people to stand over them, but since they are not to be trusted to find anything like the right answer to a disputed issue, fixed and mechanically applied rules are a far better bet. So the answer would be to stick with the voting machines.

Small-blanket democracy has nothing to offer when the laws turn out to be ambiguous, or when we need to find solutions that legal rules are too crude to offer. At that point, the tug on the blanket can degenerate into the rule of the mob that has raised an ugly arm this week. It is either that, or we will wake up and start to look for a democracy we can respect enough to allow it to help us through these uncertain situations. Why should we be so quick to believe those who shake their heads and say that this is not possible? While we may expect that those earning their bread from taking political positions such as, say, lobbyists will do just about anything to see that position win, many others with clear political convictions, including judges and electoral officers, don't see things the same way. They know in their bones that they are often in front of a tension between the constraints on them to make a decision impartially, and the results they would prefer to produce if they did not have to respect that constraint of impartiality. To think that these people suddenly abandon their scruples when politics in play is to sell them short. It is insultingly to treat them as children in front of temptation.

Americans have the chance to grasp a version of democracy that machines cannot offer. Certain ordinary citizens, with the support of the courts, might shortly gather again in the canvassing boards to recount votes. In doing so, they will quietly open the door onto a more dynamic because less distrustful democracy. If that happens, the United States would teach the world a lesson.

True, this would delay our knowing who is president, but it is worth the wait.