5. FOREIGN PERSPECTIVES
14. A FLAWED YET RESILIENT SYSTEM: A VIEW FROM JERUSALEM
Shlomo Avineri
For an outside observer, the crisis surrounding the November 2000 U.S. presidential election presented a mixed and contradictory picture. On the one hand, it proved beyond doubt the resilience of the American political and judicial system under difficult circumstances, which easily could have led to an intractable constitutional crisis—if not to something even worse. On the other hand, it brought to light, perhaps more than any crisis since the outbreak of the Civil War, some of the internal tensions, contradictions, and political costs involved in maintaining as a functional system a constitutional order built on eighteenth-century republican—and not democratic—principles. The survival of this system was made possible by grafting on the original constitutional principles ideas of universal suffrage and equality of access to political power in a haphazard and unsystematic way. This grafting has been done through a series of constitutional amendments, creative and innovative judicial interpretations of existing constitutional principles, and subsequent legislation, a panoply of overlapping and sometimes contradictory federal and state laws—all coupled with political pragmatic practices anchored in a two-party system aiming at continuity and avoidance of stasis.
Moreover, it was obvious that the crisis seriously tested some seminal aspects of the separation of powers, the principles of federalism and judicial independence, at both the federal and the state level. In other words, the historical U.S. constitutional achievement—two centuries of constitutional continuity, with just one brutal interruption leading to the Civil War—as well as the limits of this achievement and its costs, stood out in the weeks and months of the crisis.
Adjusting an eighteenth-century constitution to the conditions of the twenty-first century cannot be smooth sailing, and some of the costs—and
The crisis may also have helped to demythologize the U.S. constitutional order and present it, warts and all, to a sometimes befuddled American and international audience. If some of what transpired in Florida could have been expected more in Ruritania and Kaffiristan, the ultimate constitutional way in which the crisis has been resolved are two sides of the same, far from perfect yet functioning system.
This has to be pointed out, because before moving to the critical and problematic aspects laid bare by the crisis to at least one foreign observer, the resilience of the system should not be overlooked. After all, for almost two months the U.S. presidency—the most powerful political office in the world—and its legitimacy hung in the balance. One could not imagine a higher degree of uncertainty in a crucial electoral process; there was no obvious let alone universally accepted exit strategy because of the complexity and the confusingly overlapping sets of problems involved, ranging from theoretical issues of constitutional principles to hanging chads; both sides tried legal, political, and public relations maneuvers that sometimes looked, not only to their adversaries, but also to detached observers, more than questionable; and rhetorical flourishes, sometimes underpinned by learned scholarly opinions, cast aspersions on the very legitimacy of the candidate who might ultimately be declared the winner.
Yet during all this turmoil, the country went about its business normally; its foreign relations and strategic standing in the world were not visibly impaired; and—this is crucial—even under the shadow of a possible constitutional crisis, there was no doubt that eventually the issue would be settled peacefully.
It was so utterly clear that there never was or would be a danger of a coup, a military takeover, an autogolpe, or any other variation of a violent and extralegal intervention in what after all was evidently a flawed and controversial process that even mentioning this fact was considered banal. There could not be a greater compliment to the system than this obviousness of the absence of a violent extralegal alternative.
Yet this is not self-evident—one can imagine even consolidated democracies being shaken to their foundations by such a momentous crisis—as can be seen in the French crisis of 1958. It is as much a victory of the constitutional system as a victory of a political culture where, despite a highly competitive winner-takes-all mentality, an overwhelming consensus
Having said this, the following comments are made from the perspective of an outside observer who detected in the 2000 presidential election crisis some expressions of American exceptionalism in the sense of the U.S. system being fundamentally different from other democracies. I do not aim to hold up an ideal-type, or utopian, model of democracy as a yardstick by which to judge the U.S. system's behavior in the crisis and find it wanting. Yet, per contra, the crisis showed that the U.S. system is far from an ideal system: it is deeply flawed, it functions as an uneasy amalgam of conflicting principles and practices, and Americans should be just as humbled as proud regarding the experience of November–December 2000; they may also want to have second thoughts about offering their patchwork system for universal export. I would like to measure the U.S. system not by an ideal yardstick but by a pragmatic comparison of some of its salient features with what can be considered a common denominator prevalent among consolidated democracies. As mentioned earlier, the U.S. system survived what might have been its most serious challenge since the 1860s; yet its imperfections, flaws, and patent absurdities also became evident as never before. As pointed out by Hegel long ago, a crisis—or a war—brings out the best and the worst in humans and in human social systems.[1]
A REPUBLICAN, NOT A DEMOCRATIC, CONSTITUTION
One of the glaring contradictions apparent in the outcome of the 2000 election is encapsulated in the following figures: Al Gore received about 540,000 more votes nationally than George W. Bush, yet the election was decided in the latter's favor by his victory in Florida by 0.009 percent of the certified votes in that state. Significant numerical gaps between the popular vote and the distribution of parliamentary seats occur, of course, in any "first by the post" system and are endemic to the systems in many of the English-speaking countries that base their voting method on singlemember constituencies. It is also part and parcel of the way in which the U.S. House of Representatives is elected and is further exacerbated through tinkering by legally sanctioned gerrymandering strategies. In the British case, the outcome is visible in the underrepresentation and virtual parliamentary marginalization of any third party, specifically, the historical Liberal Party and its current offshoot; in France, a slightly different system marginalizes the National Front. Yet in many cases this is at least partly
But if such consequences of a majoritarian system have serious flaws in a parliamentary one, certainly there is no other democratic society in which an executive president can be elected if he receives fewer popular votes than his major contender.
In the United States it happened only twice before that a candidate who won fewer votes than his rival won the election (in the second of these cases, this had far-reaching consequences regarding the democratic culture of the country: it effectively put an end to Reconstruction in the South). The key to this anomaly, of course, is the Electoral College. The paradox is that until the 2000 election, most scholars and commentators viewed its very existence as a picaresque remnant of little consequence; most voters were only vaguely aware of its existence, and certainly there was little public discussion about its significance.
Yet this apparent anomaly, so clearly evident in the 2000 campaign and dramatically etched in the public consciousness through the vagaries of the Florida recount contest and various court cases, is not a mere antiquated quirk; it goes back to a fundamental principle of the U.S. constitutional system and points to a major internal contradiction within the U.S. political system. While for all practical purposes the United States is obviously a democracy, it is so as an outcome of a long series of accumulated political and juridical practices—but not according to its Constitution.[2] As Chief Justice Rehnquist reminded a somewhat stunned public in an unforgettable obiter dictum during the recount contest, there is no constitutional right in the U.S. Constitution to vote for president.[3] Under the U.S. Constitution, the president is elected by the Electoral College—and the procedures and rules relating to this process are vested under the Constitution with constitutional status and hence are privileged.
Despite appearances, the Equal Protection Clause of the Constitution does not mandate as such the right to vote for president, though it guarantees certain procedures connected with this voting, once such voting, direct or indirect, takes place. Yet the very right to vote for president is not constitutionally entrenched.
At first, this may sound a mere technicality—or far-fetched. Yet this is substantially so in a legal and constitutional sense, and it is deeply anchored in the mind-set and ideology of the Framers. As the Federalist as well as the constitutional debates at Philadelphia amply attest, the Founders clearly shied away from a democratic constitution, which was usually identified in the late eighteenth century with mass rule by the poor and the tyranny of the majority. This aversion to the principles of majority rule was further
Hence the introduction of an indirect system of electing the president through the establishment of the Electoral College—and the constitutional provision that leaves it to every individual state to decide how to select, appoint, or elect its electors. Until the 2000 election, the consequences of this arrangement were never widely discussed in public and were shared by a mere handful of constitutional lawyers, though the specter of not having a majority in the Electoral College while winning a majority of the popular vote did occasionally haunt one of the contenders in 2000 (paradoxically, it was Gore's experts who were disturbed by this possibility).
Because almost all states follow a winner-takes-all system, the composition of the Electoral College usually reflected a gross overrepresentation of the winner in the popular vote—but usually it did not change (except in the two notorious nineteenth-century cases) the outcome of the elections. Because the winner of the popular vote was also the winner in the Electoral College, albeit with an enhanced majority, the College itself could be viewed as a mere formality, somewhat helping to restore the balance between smaller and larger states (as is the aim, in a different way, of the equal representation of the states in the Senate). Moreover, and somewhat paradoxically, endowing the winner of the popular vote with an enhanced majority in the Electoral College even tended to add extra legitimacy to the eventual winner. So-called landslide victories in recent U.S. elections in which the winner appears to carry all states "except Massachusetts and D.C." are far from being landslides in the popular vote. A minuscule marginal win in the popular vote, if more or less randomly distributed among all states, could create the image of a landslide where none really existed. Moreover, in cases in which there was a strong third-party candidate and the winner achieved only a plurality of the popular vote (as did Clinton in both 1992 and 1996), the winner-takes-all composition of the Electoral College helped to eradicate from public memory the fact that he was basically a minority president.
This is all well known and hardly bothered anyone more than marginally (with the exception of some learned punditry after each presidential election musing aloud but not seriously "whether we really need the Electoral College"). Yet the 2000 election brought out the archaeology of how the United States became a democracy. It is true that the civil rights movement effectively used the Equal Protection Clause to sanction the "one person, one vote" formula. Yet it was only in 2000 that many U.S. citizens realized for the first time that nowhere does the U.S. Constitution empower the
In other words, when it comes to the election of the president, the United States is de facto a democracy, but only de facto. Constitutionally there is no provision that the U.S. president has to be elected by the majority or plurality of U.S. voters. It is the patchwork nature of U.S. electoral and political history that transformed the Electoral College from a mediating institution, expressly devised to guarantee a disconnect between voters and the presidency, into a vehicle of popular democratic decision making. To push the argument even further, perhaps to its limits, it could plausibly be argued that if tomorrow state legislatures would decide to select their electors in a different way (by lot, or by direct appointment by the state legislature according to whatever principles the majority there would find fit, or by the state governor), this may not obviously be overruled by the U.S. Supreme Court as being blatantly unconstitutional. The political process would make such a move rather unlikely, however—but not the Constitution per se.
This may sound far-fetched, yet no other consolidated democracy has such a serious idiosyncrasy built into its system. The reason for this is, of course, that the democratization of the American system happened incrementally, not through revolution or rupture; new wine was poured into old vessels (the French, obviously, did it differently). This nonviolent incrementalism is clearly praiseworthy; yet in Florida in 2000 it exacted its price. Procedures about certification, technical deadlines, and other constraints connected with what could justly be considered purely formal aspects of the process were constitutionally privileged and protected and thus could trump substantive democratic principles such as counting the vote, which did not enjoy similar constitutional guarantees.
FEDERALISM, VOTER REGISTRATION, AND BALLOTS
Most democratic societies have a uniform system of voter registration and use uniform ballots. The U.S. federal system prevents, of course, the use of one uniform ballot across the nation, as elections are held at the same time not only for president but also for the House of Representatives, one-third of the Senate, and a plethora of state officials. Yet the peculiar nature of American federalism as well as the fact that universal suffrage is not anchored
Most countries that practice universal suffrage have a national, central voter registry. In Israel, for example, the Ministry of the Interior keeps a voter registry that lists every person entitled to vote in national elections. Eligibility to vote is regulated by a number of relatively simple legal requirements: you have to be a citizen of Israel, currently resident in the country, and eighteen years of age on election day. There are no overseas absentee ballots, except for diplomats and sailors on Israeli registered vessels; the only in-country absentee voting is that of soldiers on active duty.
The basis for this National Voter Registry is the latest census, plus changes (deaths, coming-of-age, change of address, and addition of new citizens through immigration and naturalization), and it is updated on an annual basis. According to the Election Law, at a set date before an election, each voter receives by mail a notice from the National Election Commission that includes personal data, confirms that he or she is entitled to vote, and provides information about the location of the assigned polling station and the person's place on the polling station's list of voters. In the event a prospective voter does not receive this notice, ads in newspapers and on radio and television inform voters where they may check or file a claim to be added to the voter registry.
As Israel is a highly wired society, since the last election this National Voter Registry has also become accessible online at the National Election Committee Website (www.elections.gov.il). On logging in one's name and ID number, the voter's registration data and the relevant polling station information appear on the screen and can be downloaded.[4] Nothing of this sort exists in the United States. Voters have to register on their own, which obviously disadvantages the weaker sectors of society—those who do not have access to cars, who do not follow public announcements, who do not frequent public institutions such as schools, courthouses, or churches, who may have difficulty establishing a fixed, legal residence, or who may not be fully literate. That registration procedures also vary from state to state adds further complications, difficulties, and inequalities.
The result is a clear class bias, so that almost 30 percent of people who are entitled to vote usually do not register. This has been commented on frequently, but both major parties have their own, divergent yet parallel interests in not creating a national voter registry.
To this one should add the traditional American suspicion, common to both Left and Right, of anything that may look like a Big Brother databank of all citizens. However, both parties seek to register, under party auspices,
This is a serious flaw in a process that should be universal and as politically neutral as possible. What became clear in the 2000 election was that in a southern state like Florida, especially in some of the rural counties, some remnants of Jim Crow practices appear to have made it even more difficult than usual for some blacks to have equal access to the process of registration and then actually vote.
Another aspect of the same flaw is the lack of a legally binding universal mode of voter identification at the polling station. There is no national ID document in the United States—because of the same aversion to anything even slightly reminiscent of Leviathan or Behemoth. While drivers' licences are usually considered an adequate substitute, this is not universally so. There is enough evidence to suggest that in some middle-class neighborhoods no great care is taken to establish a voter's identity: you walk in, give your name, and if you appear on the list, you usually will be given the ballot. One can imagine that in some rural southern counties, first-time black voters, who have only recently registered, may be held to higher standards of identification. That many of these poor, rural blacks may not possess a driver's licence underlies some of the dilemmas and resulting inequalities involved.
The introduction of a national ID card would obviously overcome these problems—and even if some of the problems are just imaginary, perception counts. Again, to bring an Israeli example: the only valid identification document at the polling station is the national ID card. A few weeks before the elections, Interior Ministry ads in the media remind voters that they should bring their ID cards with them to the polling station. If the cards have been lost or mislaid, voters are urged to apply for a substitute at the local offices of the Interior Ministry, which in the weeks leading to the elections are open extra hours and hire extra temporary staff.
There is no doubt that the lack of a uniform national voter registry, the consequent need for party-led registration drives, and the haphazard and nontransparent manner of registration and identification at the polling station created disparities in access to actual voting and became crucial in some of the contests about recounts in Florida.
Another aspect of the piecemeal extension of voting rights in the United States, as well as the underlying salience of states' rights in American federalism, is the lack of a uniform ballot or at least nationally binding guidelines
Most of the criticism in the media and by political and legal commentators focused on the format of this ballot; few comments addressed the fact that the basic issue was the lack of uniform, universally binding guidelines or standards for ballots.[5] It is highly unlikely that the objection in principle to uniform ballot formats will disappear, and constitutionally there is probably no way to enforce it. Yet there is no doubt that the lack of uniform standards greatly impeded equality before the law and distorted voting significantly.
A similar flaw was caused by the use of different types of voting machines. The old, manual punch-card machines used in some of the problematic Florida counties were just an example of the electoral consequences that this lack of uniformity in what is not a merely technical matter entailed.
Most countries of course use one ballot format. In the Israeli case, paradoxically, while voter registration is done electronically and is available online, voting itself is done the old-fashioned way—by paper ballots, manually counted. It surely does not compare with the sophistication of some of the varied methods used in American voting; but results are easy to check, recounts can be done quickly, no great discrepancies appear, and results from all polling stations are available within a few hours after the polls close.
Furthermore, as the Florida selective recounts proved, different types of voting machines cause highly differentiated ratios of both overvotes and undervotes. Where modern electronic equipment was available, the margin for possible voter error and hence possible invalid votes was obviously lower. A closer scrutiny of Florida counties showed that the richer (mainly Republican) counties used modern, electronic equipment, while poorer (mainly Democratic) counties still used the antiquated machines that created so much havoc and were the center of attention of a befuddled national electorate that became deeply engrossed in the arcana of hanging, dangling, and pregnant chads.
Again, it is the peculiar nature of U.S. federalism that is the cause of these discrepancies, since responsibility for the conduct of elections is not federal but is vested in the states, which delegate responsibility to the counties. This also means that funding is locally based, which again means that richer counties can afford better and more accurate machines. This is a clear class-based bias in favor of residents of richer areas having a better chance that their votes will be adequately counted than those in poorer areas. This is, of course, not the intent of this highly decentralized system: it is, however, an inescapable consequence of it.
All this leads back to a basic flaw—and idiosyncrasy—of the U.S. system: the Federal Election Commission deals mainly with campaign funding, not with the conduct of the election or with setting down uniform rules for voting procedures. As a member of a number of international teams of observers under the auspices of the U.S. National Democratic Institute (NDI), I have participated in a number of election observation teams in postcommunist countries. One of the first issues we raised was the uniformity of election rules and procedures and the integrity of the ballot. What is self-evident for Americans when trying to guarantee elections abroad is not practiced at home.
NATIONAL ELECTION COMMISSION
The lack of a national election commission enforcing uniform norms was clearly visible during the drawn-out period of the recount and contest in Florida. The transparency of the process was greatly vitiated by the lack of such an impartial authority, and it might have contributed to the aura of illegitimacy that accompanied some of the maneuvers involved in the process of certification of the Florida vote.
One of the surprising aspects of the American system as it transpired during the controversy over the Florida vote was that the U.S. Constitution ultimately leaves certification of federal election results in the hands of state officials, themselves politically elected and partisan. That election results would be certified, as they were in Florida by Secretary of State Katherine Harris, a party activist who was also co-chair of the Bush campaign in Florida, would be unthinkable in any democratic society.
The composition of a national election commission, where it exists, as it does in most democratic societies, varies from country to country: it is, however, a mix of public servants, judges, representatives of the contending parties and candidates, and members of other public bodies. To go back to the Israeli example, the National Election Commission is, by law, made up of representatives of the parties as proportionally represented in the outgoing Knesset (plus observers of new parties not yet having parliamentary
That so much of the anger at Katherine Harris's performance was ill placed, malicious, and sexist is repulsive; yet the very role given to her under the U.S. Constitution harks back to predemocratic periods of the American polity. Under normal circumstances, it would be a mere formality—as it was even in 2000 in virtually all the other states. But in a close and contested election, as in Florida, the price paid for constitutional continuity is clearly exposed: the formal and substantive aspects of the American system were clearly divorced from each other. The anomalies thus created have tended this time to bring the system to the abyss and to the brink of a crisis of legitimacy. The resilience of the system eventually overcame its flaws—yet at a very high cost.
INDEPENDENT COURTS? SEPARATION OF POWERS?
Perhaps the most egregious aspect of the Florida recount became the role of the courts. It is a truism of the democratic ethos that regardless of the voting system, the way votes are ultimately counted will be, in the case of a contest, laid at the door of an impartial judicial system that serves as the final arbiter of what is legitimate and what will pass as legal and valid. In the U.S. context, this is in theory apparently enhanced by the doctrine of the separation of powers and the constitutionally guaranteed independence of the judiciary. Again, as a veteran observer for NDI, I can point out that the existence of such an impartial court was always one of the first questions asked in any case of an internationally sponsored observation mission.
It was perhaps this notion that became the main victim of the way in which the 2000 presidential election was ultimately settled by the U.S. Supreme Court. If some of the practices of local and state Florida officials occasionally could be attributed to the usual partisan skullduggery, the way in which the Florida circuit courts, then the Florida Supreme Court, and ultimately the U.S. Supreme Court handled the issues cast a deep—and perhaps lasting—shadow on the notion that the American judicial system is what is professes to be.[6]
Without going into the details of the various decisions handed down by
That American federal and state judges and justices are appointed by a process that is not, nor can it be, totally free from political considerations is an inevitable outcome of the procedures prescribed by the U.S. Constitution (and by various state constitutions), as well as by the political practices that evolved within that legal framework over generations. The raucous and confrontational hearings before the Senate and the noisy public debate that accompanied some recent nominations, such as those of Bork and Thomas, only exacerbated the ideological and partisan nature of the process and its perception as such by the public. Yet for all of this partisanship, which the U.S. public takes for granted, one could argue that most observers would still like to believe that while justices and judges could be categorized as "conservative" or "liberal" on most of the contentious ideological issues (such as abortion or prayer in school), when confronted with issues that are of utterly political significance yet also highly technical, relating to election certification, recounts, and so on, they would not vote along discernibly party lines.
Yet this was not the case in the Florida contest. First, when any issue came up before the courts—from Tallahassee through Atlanta to Washington, D.C.—the judges and justices involved were immediately identified according to what could be known about their political sympathies by the simple device of reminding the public by whom they were appointed (a Democratic governor, a Republican president, etc.). Moreover, in choosing which court to approach (in those cases in which such a choice was available), both contending sides decided their strategy along considerations drawn from the known or supposed political preferences of the judges or justices in question, as based on their appointment history and their known previous ideological preferences as expressed in decisions handed down by them in the past.
Yet it was not only the public's or the lawyers' perceptions, but the ultimate outcome, that was so problematic both on the state and federal levels. With a few minor exceptions, the Florida Supreme Court, overwhelmingly appointed by previous Democratic governors, tended to favor Gore on issues of deadlines, mandating recounts in heavily Democratic counties, and so on. Even more egregious were some of the maneuvers in the U.S. Supreme Court, when the conservative majority engaged in a series of tactical moves that could only be called underhanded and that made an ultimate Republican victory unavoidable eventually, on the basis of formal decisions that succeeded in avoiding the democratic substantive issue ("Count the votes"). In all fairness, the liberal minority took the same approach—only
In this politicized process, conservative justices of the U.S. Supreme Court privileged federal power over states' rights, and some liberal justices became the staunch supporters of the primacy of states' rights. Such an inversion of ideological positions in order to reach partisan, politically desired goals was transparent, especially when the ultimate decision of the U.S. Supreme Court was based on a technical impediment created earlier by the same Court itself. By putting the Gore campaign against a time constraint created by its own previous decision, the Court majority acted not as objective arbiters but as partisan supporters. For the august U.S. Supreme Court to decide in this way by a majority of one was, to say the least, a great disappointment for all who looked up to the highest court in the land of the free and the home of the brave.
THE MEDIA
The role of the media has been extensively discussed during and after the drawn-out contest. There is no doubt that whatever flaws the system produced were gravely exacerbated by the minute and continuous coverage focused on them by the media and the constant barrage of news, comment, spin, and hype involved in what was certainly one of the most dramatic events in modern electoral history. The twists and turns of the story, unexpected and constantly changing, added a dramatic dimension that made this one of the best political thrillers ever to have been produced. If composed by a fiction writer, it would have been dismissed as totally lacking in credibility.
Much attention was drawn to the way the major television networks "called" Florida twice—first for Gore, then for Bush—and how the second "call" established a presumption of victory for Bush that made Gore appear the contester of an outcome that was far from decided; this also sometimes made Gore look like a spoiler whose attempts to achieve an adequate recount could be presented as verging on the illegitimate. In a situation of great volatility and an obviously very close vote, television's proclaiming Bush the winner framed the subsequent discussion as between a presidentelect and a challenger.
Yet a situation in which the media call an election before most of the votes, let alone all of them, have been officially counted is now more or less universal; unless the vote is very close, exit polls turn out to be a reliable predictor. But the closeness of the Florida vote made the early calling of the state for Bush more problematic, and it is obvious that the organizational changes the networks will in all probability make in the future in their methodology (especially in not relying on one analytic source) are greatly welcome.
One issue, though, deserves special attention—because it epitomizes a clear clash between the principle of fair reporting and the constitutionally privileged position of free speech in the U.S. context. This is the issue of the networks first having called Florida for Gore when voting was still going on in some counties of Florida's western panhandle, where the polls close an hour later because the counties are in a different time zone. This raises, of course, the wider issue of calling states when elections are still in progress in the western states: voters there may be—or may feel—at a disadvantage and may be discouraged from going to the polls when it appears that the election has already been decided on the East Coast and in the Midwest. The time zones spanning the American continent certainly present a unique problem for which there is no obvious or easy answer.
Most democratic countries are in one time zone, and hence it is easier to try to regulate the way exit polls are broadcast. The general rule would be that the law prohibits the broadcasting of exit polls when the election is still going on. Some countries even prohibit by law publishing public opinion poll results during a designated time immediately before the elections (twenty-four or forty-eight hours). Again, let me refer to the Israeli example: in Israel, all polling stations all over the country close at the same hour, 10:00 P.M.; media sample exit polls (which usually cover about 10 percent of the polling stations) close one hour earlier, at 9:00 P.M., and the polling organizations of both television channels have one hour to work out their calculations. At 10:01 P.M. both channels broadcast the expected results as based on their exit polls and pronounce the winner. In the last two decades, they have been wrong only once, in a very close election, and within the statistical margin of error their estimates have proven accurate as to the distribution of votes and seats in parliament as well.
Announcing the winner in Florida before all polling stations in the state closed was obviously a serious intervention by the media in the electoral process; whether it did or did not affect the final result, eventually so close in Florida, is beside the point. But the absolute protection of free speech under the Constitution makes it extremely difficult, probably outright impossible, to pass legislation that would prohibit a repeat of such an occurrence. Voluntary self-restraint can be an effective substitute and may indeed be achieved next time in the specific case of Florida's two time zones; yet
IN LIEU OF CONCLUSION
The argument I have tried to develop in this analysis is that the Florida case in the 2000 presidential election was not just a freak case or a road accident; its main facets are systemic and deeply anchored in American exceptionalism. Perhaps with the exception of the United Kingdom, the United States is the only modern democracy where universal suffrage is not anchored in a basic, more or less coherent founding document. It is made up of a hodgepodge of incremental changes grafted on a Constitution that while republican is not democratic in the normative and institutional sense. In most cases, the seams of this patched-together garment are not visible and the system works more or less in an orderly fashion.
When the margin of victory is wide, a few thousand overvotes or undervotes caused by faulty machines and other consequences of the lack of a uniform election code do not make much of a difference. But when the margin narrows—as it eventually did in Florida—to a few hundred votes deciding the presidency of the United States in a system whose procedures developed in an eighteenth-century indirect system anchored in an Electoral College trumping the popular vote, which is not equally protected under the Constitution, then the splendid multicolored coat of the American polity was almost torn. Certainly it became clear that it is not as neat as the American self-image would like it to appear.
Given American federalism and the ingrained American aversion to government-regulated overall structures, it is unlikely that a national election commission, regulating through uniform norms voting procedures and certification, let alone voter registration, is likely to emerge. Yet in a well-tried American method of using the powers of the purse to eliminate at least some of the glaring inequalities (in funding, availability of identical equipment, etc.), some tinkering with the system may help to produce not a more perfect Union but at least a less uneven one.
APPENDIX
Printout of Voter's Data, National On-Line Voters Registry,
Israel 2001 (translation)
SPECIAL ELECTIONS FOR PRIME MINISTER, 2001
Enquiry results
PERSONAL DATA:
ID NUMBER: 043000983
FAMILY NAME: Avineri
FIRST NAME: Dvora
FATHER'S NAME: Jonah
POLLING STATION DATA:
POLLING STATION: 407.0
NUMBER ON POLLING STATION LIST: 0015
POLLING STATION ADDRESS: 15 Kovshei Qatamon Street
CITY: Jerusalem
LOCATION: Horev Elementary School
HANDICAPPED SPECIAL ACCESS AVAILABILITY: None
Click here for map of area of Polling Station
NOTES
1. For a collection of some of the salient op-ed pieces, legal commentaries, and court decisions regarding the crisis, see E. J. Dionne Jr. and William Kristol, eds., Bush v. Gore (Washington, D.C.: Brookings Institution Press, 2001).
2. Even a political theorist of the stature of Harvey J. Mansfield did not apparently find this significant enough to be mentioned in his defense of the U.S. Supreme Court ruling in Bush v. Gore. See his "What We'll Remember in 2050," Chronicle of Higher Education, Jan. 5, 2001.
3. The Florida Constitution (Art. I, § 1) does declare that "All political power is inherent in the people," yet even the Florida Supreme Court found it difficult to construe from this a federal constitutional right to vote for the U.S. president. See Palm Beach County Canvassing Board v. Harris, 772 So. 2d 1220 (Fla. 2000).
4. See Appendix for the English translation of one voter's data for the February 6, 2001, election for prime minister.
5. E.g., Ronald Dworkin, "The Phantom Poll Booth," New York Review of Books, Dec. 21, 2001.
6. Gore v. Harris, 772 So. 2d 1243 (Fla. 2000); Bush v. Gore, 121 S. Ct. 512 (Dec. 9, 2000); Bush v. Gore, 121 S. Ct. 525 (Dec. 12, 2000).
15. CONSTITUTIONAL COUNCIL REVIEW OF
PRESIDENTIAL ELECTIONS IN FRANCE AND A
FRENCH JUDICIAL PERSPECTIVE ON
BUSH V. GORE
Noëlle Lenoir
At a time when the market economy is on the way to dominating the world, some people are announcing that ideologies are dead and that politics is being ousted by economics. Is this prophecy becoming a reality? There are good grounds for doubting it, considering the excitement that political elections continue to generate in the life of a country. Admittedly there is a general tendency for the abstention rate to rise from one election to the next, although this tendency is appreciably lower in Europe than in the United States. And the younger generation's lack of interest in public life is a genuine source of concern. But let us not be misled: national and even local elections are still the high points in the life of a democracy. This is when the citizens get to choose who will represent them (in France, as deputy, senator, or president of the Republic) or what team (municipal, general, or regional council in France;[1] parliamentary majority), once in place, will have the responsibility of directing the life of the national or local community to meet the aspirations of the country. It is when the citizens choose their political leaders, whom they can then call on to "give an account of their administration."[2]
The right to vote is at the core of democracy. It is the vector through which the people's will is expressed, this "general will" that in the view of Jean-Jacques Rousseau could never do wrong. Conceived as the base for national sovereignty, the general will has a quasi-religious status in France. The right to vote, in France as elsewhere, is the source from which all other rights flow. At the end of the nineteenth century, the United States Supreme Court held that "The right of suffrage is a fundamental political right, because preservative of all rights."[3] In the same spirit, the Constitutional Council (as France's supreme constitutional court, which is the only tribunal that can adjudicate constitutional issues, is called) today ranks
Under the current French Constitution, dating from 1958, three principles guarantee the democratic character of the right to vote. The first is equality of voting rights. "One person, one vote" is the motto of modern democracies. Irrespective of social or ethnic origin, marital status, or income, each person's vote carries the same weight. The second principle, a corollary of the first, is the universality of voting rights. No category whatsoever can be excluded from the right to vote: the poor, or women, for example. Let us recall in passing that the principle of universality applying to the whole of society took much longer coming in France than in most other European countries. It was only toward the end of the war, by an ordinance of General de Gaulle's Provisional Government of April 21, 1944, that French women were given the right to vote.[5] The third principle relating to the right to vote, anchored in the French political and legal culture for a long time now, is the secret ballot. In ancient Rome, whose legal system influenced France so heavily, voting was public in accordance with a partly aristocratic concept of politics. The least powerful voters were supposed to accept the influence of their elders and betters. But in this respect France did not follow Rome's example, and already in the Middle Ages the principle of the secret vote was adopted for the designation of certain deputies representing the Third Estate.[6] Voting booths, a practice first used in Australia at the 1856 elections in the state of Victoria, constitute a formality now made mandatory by the Electoral Code. And the secret vote is not only intended to protect voters against the possibility of pressure. Its significance is broader. It means that voting is the expression of a truly free choice, deferring to a liberal vision of the relationship between the citizen and politics. This design always prevails, even if, in France as elsewhere in Europe, voters' minds nowadays are made up primarily by party machines, far more highly structured than in the United States. The introduction of the secret vote on the Australian model (with voting booths) could at certain times and in certain countries be deflected from its true aim, as it was, for example, in the southern United States to restrict the black turnout in the elections of 1888.[7] But in France the voting booth genuinely protects the constitutionally entrenched freedom of the vote. In the event of failure by a sufficient number of voters to comply with the obligation to use voting booths, the electoral court considers whether this breach of the Electoral Code may or may not have influenced the outcome of the ballot. In the affirmative, it can go as far as to annul the votes cast at the relevant polling station.[8] Clearly, then, the principles stated by Article 3of the French Constitution of 1958, namely, that "Suffrage may be direct
In France, it was not always for the courts to enforce the principles of electoral law. In local elections judicial review has for a long time been exercised by the administrative courts, the highest of which is the Council of State.[9] With regard to national and more particularly parliamentary elections, however, the tradition until 1958 was, as in the United States, to allow Parliament itself to certify that its members had been properly elected. After each general election, for instance, the National Assembly[10] would check the validity of the election of deputies (elected by direct suffrage), and after each senatorial election the Senate did likewise for senators (elected by indirect suffrage by a college of "grand electors").[11] Just as the American Constitution (Art. I, § 5) provides that "Each House shall be the judge of the Elections, Returns and Qualifications of its own Members," so successive Republican constitutions of France provided that "The legislative body alone shall rule on the validity of operations of the primary assemblies" (Constitution of 5 Fructidor, Year III, Art. 23, under the Revolution), that "Each House shall be the judge of the eligibility of its members and of their proper election; it alone may receive their resignation" (Constitutional Act of July 16, 1875, Art. 10, of the Third Republic), and that "Each of the two Houses shall be the judge of the eligibility of its members and of their proper election; it alone may receive their resignation" (Constitution of the Fourth Republic, October 27, 1946, Art. 8). The country that symbolizes the parliamentary system in its purest form—the United Kingdom—abandoned this procedure of "verification of credentials" by the houses of Parliament in the nineteenth century and transferred electoral litigation to the ordinary courts.[12] But it seemed out of the question for France ever to give up a system that clearly illustrates the primacy of the political over the legal, a dogma that is so dear to French culture. Yet the profound changes introduced by the 1958 Constitution succeeded in doing away with this procedure, which had admittedly come under serious strain several times in the Fourth Republic. Certain decisions of the National Assembly, manifestly partial and unjust, had greatly shocked public opinion and provoked reactions in the press.[13] So the authors of the Constitution of 1958 decided to assign to a court—the Constitutional Council—responsibility for settling litigation surrounding parliamentary elections.[14] The Council was also given jurisdiction to oversee referendums. Referendums, like the Constitutional Council itself, are among the great innovations of the 1958 Constitution that testify to the scale of the institutional changes made by it. By conferring on the Constitutional Council the jurisdiction of an electoral court (and more besides, as will be seen), the 1958 Constitution exemplified here as elsewhere the reduction in the powers of Parliament. The concept of "rationalized parliamentarianism" is
But the political change brought about by the Fifth Republic was far from completed in 1958. The institution of the election of the president of the Republic by direct universal suffrage in 1962 is an equally important date in the constitutional history of France.[17] With this reform, France reverted to a certain tradition of allegiance to a charismatic leader in direct contact with the people and officially in charge of its destiny. De Gaulle had never hidden his distaste for the previous Republics, in which the president—exercising symbolic rather than real powers—was designated by the two houses meeting together. In a speech at Bayeux on June 16, 1946, which is regarded as expressing his constitutional doctrines, he argues that "From a bicameral Parliament exercising the power to enact legislation, it goes without saying that the executive power cannot proceed without running
selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. … And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.[21]
In France, by contrast, the constituent assembly of the Fifth Republic wanted to confer the most undeniable legitimacy possible on the president of the Republic while putting him in direct contact with the people. "Nowadays direct agreement between the people and the person who has the responsibility of leading them have become fundamental to the Republic," de Gaulle stated in a television speech (June 8, 1962), a few months before submitting his project to a referendum.
It is an irony of history that in France where the constituent assembly wanted to place the president of the Republic "above the parties," as de Gaulle put it,[22] the effect of divided government, known as the "cohabitation" situation, is to deprive the head of state of the effective enjoyment of the majority of his powers. This goes to show that France remains a parliamentary system; even if there is now a strong presidential element, this is a parliamentary system in which elections to the National Assembly are the dominant fact of political life. It is these elections that set the rhythm of government policy. If the majority in the National Assembly is of the same political stripe as the president of the Republic, then the president is in control of the policy of the nation, whatever Article 20 of the Constitution says about this being the prime minister—led government's job. If after the general election the majority in the National Assembly does not consist of parties supporting the president of the Republic (as has been the case several times since 1986, notably since the elections that followed the dissolution of the National Assembly by Jacques Chirac in 1997), a period of cohabitation then begins during which it is indeed up to the prime minister to direct the government's action. Presidential elections in France thus do not always have the structural effect they have in the presidential regime in the United States.[23] This is not to say that in France presidential elections are ever, as in some countries, a minor fact of political life. Indeed, whenever the president of the Republic and the majority in the National Assembly belong to the same political family, the powers of the French head of state are considerable, even more important than those of the president in the United States.
With that in mind, let us now consider the central question: is it conceivable that the Constitutional Council, as an electoral court reviewing the presidential election, might take a decision similar to that taken by the U.S. Supreme Court in Bush v. Gore on December 12, 2000? Formulated in this way, the question must be answered in the negative, as there are so many legal problems specific to the United States that do not arise in France. For one thing, the Constitutional Council is the only court with jurisdiction over presidential elections. The Council, operating in a unitary rather than a federal state, enjoys exclusive jurisdiction under the Constitution to review presidential elections. It does not therefore, by definition, have to consider the extent of its jurisdiction, as the U.S. Supreme Court had to do in relation to the Florida Supreme Court. It does not have to consider its jurisdiction to interpret state electoral law, as there is only one electoral law, valid for the entire country. According to this legislation, the Constitutional Council is required to count all the votes cast, from the first to the last. It is indeed for the Council to declare the results of the election after making any necessary corrections in the light of any complaints that it considers founded. It would be unthinkable for the Constitutional Council to certify these results (and therefore the name of the elected president) without first calculating the exact number of voices obtained by each of the candidates.[24]
For all that, is it possible that the Constitutional Council might one day be faced with difficulties similar to those met by the U.S. Supreme Court? The answer to this question is yes, assuming that these difficulties were of a political as much as a legal nature. How to arbitrate a particularly close election? What would happen if on the evening of the second ballot the television networks announced that this or that candidate had won a presidential election in France by a margin of just a few votes? If there was an action contesting the election on the basis of serious arguments, would the Constitutional Council not be, like the U.S. Supreme Court, in a crucial arbitration situation? Indeed it would, and there would be no way out. It could not decline the jurisdiction and pass the buck to another court or to Parliament, which no longer has a role to play in the process of electing the president of the Republic. So what line would it take? Would it opt for a position of "self-restraint" so as to be above all suspicion of politicization? Would it take a more activist approach and cause the scales to lean more heavily to one side than the other? Another, related question is this: would the nine members of the Constitutional Council cast their votes in accordance with their respective political sensibilities?[25] Or would the Council, in a case with such a political dimension, be at pains to find a consensus at all costs in order to better protect the institution?[26] The answers to these questions are bound to be purely hypothetical as it is always hard to predict the decisions of a supreme or constitutional court, inevitably
Before I go on to analyze the Constitutional Council's role in administrative decisions and litigation in reviewing presidential elections, a brief description of how candidates are selected and the poll conducted might be helpful. In France, the job of president of the Republic is not open to just any man or any woman who wants it. Every candidate for the presidency must receive a number of nominations, the validity of which must be verified by the Constitutional Council. France does not have a system of primaries[27] but a "nomination" system. The aim is to filter candidacies without jeopardizing the principle of the popular vote. Under the Decree of March 14, 1964 (amended several times), which is the basic instrument governing the election of the president of the Republic by universal suffrage, a candidate for the presidency must be sponsored by at least five hundred citizens exercising an electoral office and coming from at least thirty departments or overseas territories,[28] no more than one-tenth of them being the elected representatives of the same department or overseas territory. These "nominating citizens" are therefore all national representatives (deputies and senators) or local representatives (regional or department councillors, members of the Paris Council, members of the assemblies of the overseas territories, mayors, etc). The list is updated periodically, to take account of the developments in administrative structures and electoral representation. An act of February 2001, for example, added to this list the mayors of the districts of the two largest cities outside Paris (Lyon and Marseilles) and members of the European Parliament having French nationality and elected in France. The lists of nominated candidates must be sent no later than eighteen days before the first ballot to the Constitutional Council, which forthwith checks whether nominations indeed come from proper representatives who have personally signed the form provided for this purpose. In addition, these forms, printed by the administration, must be in conformity with a model approved by the Constitutional Council.[29] The name and status of the nominating citizens are made public by the Constitutional Council, no later than eight days before the first ballot, at the same time as the list of candidates. The latter can be contested by any person having received at least one nomination. Deadlines are extremely tight: candidates have only until midnight the day following publication of the list to refer the matter to the Council, and the Council is required to rule "without delay."[30] Cases can now be referred to the Constitutional Council concerning not only the nomination but also the eligibility of candidates. In 1969, for example, the eligibility of one of the candidates for the presidency, Alain Krivine, leader of a Far Left party, was contested on the grounds that he had not fully discharged his obligations with respect
Regarding the balloting technique, it meets the overall objective of consolidating the popular legitimacy of the president of the Republic. The poll involves voting for individual candidates, who must obtain a majority, and there are two ballots. A candidate who obtains an absolute majority of the votes cast at the first ballot is elected. If no candidate obtains this majority at the first ballot, a second ballot is held no more than fifteen days later, when only the two "candidates who, in appropriate cases after better-placed candidates have withdrawn their candidacies, have received the largest number of votes at the first ballot" remain eligible. The idea is to prevent the president of the Republic from being elected by only a small percentage of voters, which might be the case with a single ballot. Even so, if there is a low turnout or a large number of blank or spoiled votes, the elected president may have received the votes of only a minority of the electorate. At the presidential election of June 1 and 15, 1969, when two right-wing candidates remained at the second ballot—a Gaullist, George Pompidou, and a Centrist, Alain Poher, at the time president of the Senate—the leftwing parties invited their voters to abstain or cast blank or spoiled votes. Result: George Pompidou obtained a comfortable majority, 58 percent of the votes cast, corresponding, however, to only a minority of the registered voters; even disregarding the blank votes, the abstention rate, abnormally high for France in a presidential election, had amounted to more than 30 percent. Another example is the presidential election of 1995. Rivalry between the two Gaullist candidates standing at the first ballot, Jacques Chirac and Edouard Balladur, upset a good number of right-wing voters. At the second ballot Jacques Chirac was now standing alone against Lionel Jospin, the Socialist candidate, but some of these voters decided to cast blank or spoiled votes; these accounted for almost 5 percent of the votes cast, so that Chirac obtained almost 53 percent of the votes cast but not an absolute majority of the potential votes. But this is not comparable to the American situation, where, through the system of electors representing their individual states, a candidate can lose the election even after having received more votes in the country than his opponent, as was the case of Al Gore in November 2000.[33]
The mechanism in France is as follows: if no candidate receives an absolute majority of the votes cast in the first ballot, the Constitutional Council, no later than 8:00 P.M. on the Wednesday following the Sunday when the ballot took place,[34] declares the number of votes cast for each candidate and publishes the names of the two best-placed candidates[35] remaining for the second ballot. If contentious questions arise at this stage, the Constitutional Council's decision is final and there is no appeal. The declaration of the results of the second ballot likewise compels the Constitutional
The Constitutional Council, as we have seen, does not just review the presidential election but acts as a veritable election monitor, whereas the American courts (right up to the U.S. Supreme Court if necessary) act only to settle litigation. Moreover, and this is another essential difference between France and the United States, the electoral legislation in France applies throughout the country. Even the practicalities of how votes are cast are strictly uniform for all elections, be they national, European, or local. There is complete judicial review of the presidential election in France, as the Constitutional Council must recount all the votes in order to be able to declare the results. In the United States, in contrast, a president may very well be declared elected without anyone being able to determine the exact number of votes cast for him or her.
The Constitutional Council's review of the presidential electoral process is decidedly original. The Council is consulted on the drafting of the instruments (decrees and circulars) organizing the relevant election on the basis of the general electoral legislation.[40] These instruments govern both the practical organization of the campaign and the electoral operations themselves. They specify, for example, the conditions of production and distribution of programs relating to the official television campaign.[41] The Council is also asked to state an opinion on the standard forms used in organizing the election, checking, for example, whether they are understandable enough for those who fill them in to discharge their legal obligations. Such is the case in particular for the forms used by the nominating citizens who sponsor a candidate. The Council's opinion on these forms is advisory and therefore has no judicial status. But the Council can receive references in a judicial capacity concerning complaints about preelectoral operations. Its case law in this area is decidedly subtle, because it must take
The second major feature of the organization of the presidential election in France is centralization. The presidential election, like all other elections, is organized in the same way throughout the country and is the responsibility of the state.[45] For example, the form and presentation of the electoral documents (information sent to voters' homes, setting out the candidates' programs; electoral posters at certain reserved sites; ballots; envelopes containing the ballots; etc.) must meet criteria defined uniformly for the whole country. The way in which votes are cast is also the same
The last specific feature of the review of presidential elections in France is its exhaustiveness. This is made possible through a rigorous mechanism whereby results are transmitted from bottom up as follows: once the electoral operations are over, each polling station counts the votes. Envelopes are opened one after the other in the presence of the public and their contents read aloud. The overall results for each commune, recapitulated on forms provided for this purpose, must reveal the votes cast and the abstentions and spoiled votes.[49] The results are then passed on to an administrative "counting committee" for the department, made up of three magistrates, where the results for all the polling stations are added up[50] after corrections if necessary and then passed on by each departmental committee to the Constitutional Council. The Council is the final link in the chain, pooling the counting of votes at the national level. This design in France of an electoral court that both counts and reviews is not entirely
Although the Constitutional Council receives references on every aspect of the presidential election, it nevertheless considers each reference individually. This is the most important of its functions, even though in theory it has only ten days to consider all references. Because this period is very short and it is important to avoid a proliferation of references, the possibilities of referral to the Council are tightly circumscribed. With regard to general and Senate elections, references may be made to the Council by any candidate or any voter in the district within ten days of the election, without any other special condition. And it has several months to rule after having gathered all the information it needs for its judgment. The right to contest a presidential election is open to voters or to candidates' representatives only if they take the precaution of registering their complaint in the official report of the operations of the relevant polling station.[54] Admittedly, prefects and the candidates themselves, who can also contest the election, are exempted from this formality; but they have only two days to bring their case. Apart from these procedural constraints, applicants are obviously free to rely on whatever grounds and arguments they wish; for example, maneuvers designed to prevent certain voters from going to the polls are denounced before the Council. As in the United States, intimidation to dissuade black voters from turning out have sometimes been observed in New Caledonia, a French overseas territory, and similar allegations were made at the first ballot for the presidential election of 1988. In particular, because barricades had been put up on the public highway, many polling stations had been unable to open. Given the political circumstances of the election in this territory and to avoid fueling the climate of violence prevailing at the time between separatist and antiseparatist movements, the Council was content in its decision on the presidential election
Votes are also invalidated when the ballot box is not transparent, because the Council considers that there is a risk of fraud in this case. And if there is a serious discrepancy between the number of ballots found in the ballot box and the number of voters who signed the register, the Constitutional Council will have no hesitation about annulling the results at the polling station.[58]
Apart from anomalies—formal irregularities, maneuvers, and fraud— that might adversely affect the outcome of the election, the Constitutional Council, like any electoral court, will sometimes have to determine a voter's intention in order to assess the validity of votes cast. The situation that arose in Palm Beach County in the American presidential election of 2000, where more than twenty thousand voters thought they were voting for Al Gore but unwittingly voted either for both Al Gore and Pat Buchanan or for Pat Buchanan alone, is most unlikely to arise in France. In France, voters have no machines to operate; they simply select among the ballots placed before them the one that bears the name of the candidate of their choice.[59] But the fact remains that the validity of certain ballots may have to be assessed in France as in the United States. This is a purely factual assessment, but that makes it all the more delicate. In theory, any ballot will be excluded if there is the slightest means of recognizing it and therefore a possibility of camouflaging fraud. The courts have held in a long line of cases that ballots with erasures, overwriting, holes, tears, or whatever are spoiled votes. But however clear and constant the case law may be, its practical application can raise difficulties of assessment as to whether certain ballots should be annulled. The Constitutional Council faced such a dilemma on the occasion not of a presidential election but of a Senate election in 1996. The two candidates still standing at the second ballot received equal numbers of votes, so, in accordance with the Electoral Code, the older of the two was declared elected. On a reference from the unsuccessful candidate, the Constitutional Council acknowledged that one of the ballots it had annulled might possibly have been regarded as valid, which would have
Let us imagine for a moment, then, that the gap between the votes cast for the two candidates at the second ballot is down to a few hundred, and the Constitutional Council observes irregularities affecting the validity of far more ballot papers than that. Let us imagine another hypothetical case, in which the Council has serious doubts as to attribution to one or the other of the two candidates at the second ballot of a no less significant number of ballot papers. What solution would it adopt? In the first hypothesis, strict attachment to principles would suggest that it should reverse the results and declare elected the candidate who was thought to have been the loser. But it has never gone that far in a parliamentary election,[64] and it is therefore unlikely to do so in a presidential election. The second solution would be for the Constitutional Council to turn a blind eye to the anomalies it has observed and to confirm the results as announced by the media on the evening of the election. But would this not perhaps tarnish its image and affect its authority and possibly even weaken the president? That leaves only the possibility of annulling the election. As Guy Carcassonne argues in an enlightening commentary, while there is no doubt that this is legally a valid option for the Constitutional Council, "politically, things are very different."[65] But would it really have the option of proceeding differently if the results of the voting were seriously contested? The possibility of annulling the presidential election is expressly provided for by the legislation. An institutional act[66] applicable both to referendums and to presidential elections provides that "if the Constitutional Council observes irregularities in the course of electoral operations, it must assess whether, given the nature and gravity of these irregularities, those operations should be confirmed or annulled in whole or in part." The reconciliation of these provisions, in the event of total annulment of the results of the presidential election, with
By way of conclusion, several points come to mind. First, in the way they are organized and reviewed, presidential elections in the United States and France have little or nothing in common. The American system admits differences according to the voters' geographic location, whereas French legislation is designed to secure as scrupulously as possible the principle of equal protection of the law; moreover, this legislation, however recent (forty years), is constantly being adapted so that it can better match the challenges of a modern presidential election. The law is regularly amended, in preparation for each new election, among other things to take account of the "observations" (published in the Official Journal) that the Constitutional Council addresses to the government to review the previous presidential election and prepare for the next one.[68]
In France, the events that marked the American presidential election of November 2000 are simply impossible. Everything is done to allay all possible doubts as to the exactness of the results as declared by the Constitutional Council. No detail of the organization of the election is left to chance: neither the presentation of forms for nominating candidates, nor the size of the posters and the color of ballot envelopes, nor even the smallest detail of the voter's conduct. All in all, presidential elections in France, being subject to permanent vigilant monitoring by a single authority—the Constitutional Council, which operates either as an advisory authority or as a court, depending on the question—are based on a more
Even so, this system is not wholly protected from unpredictable events like those involved in the U.S. Supreme Court decision in Bush v. Gore. The paradox is that the Constitutional Council is at even greater risk than the U.S. Supreme Court, which apparently did not actually have to rule directly on the election itself but could have left it to Congress. In France, this would not be possible. The Constitutional Council is bound by the Constitution to have the last word. If it has doubts as to the results, it must consider every possible and every conceivable legal argument and then come to a final decision. The principles of electoral law in this situation should prompt it to annul the election. But can one ever know in advance what a supreme or constitutional court will decide to do in a given political configuration? "I never promised you a rose garden. I never promised you a perfect justice," wrote the American author Hannah Green. All we can hope is that an electoral court that is forced to intervene directly in such a political process (a situation that the Constitutional Council has not experienced since it was established) will above all resist the temptation of politicization.
NOTES
1. France, a unitary state, comprises three territorial levels of administration: the commune, whose decision-making body is the municipal council chaired by the mayor; the department, whose decision-making body is the general council; and the region, whose decision-making body is the regional council. All these territorial bodies are elected by direct universal suffrage.
2. Article 15 of the Declaration of Human and Civic Rights of 1789, which is part of the "corpus of constitutional law" in France, provides expressly that "Society has the right to ask a public official to give an account of his administration."
3. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
4. See in particular Decision 89–271 of January 11, 1990, on the law concerning the limitation of electoral expenditure and the clarification of the financing of the political activities, Recueil, 21.
5. See Noëlle Lenoir, "Parity in France, or Increasing Women's Electoral Representation," International and Comparative Law Quarterly, April 18, 2001.
6. In the ancien régime, society was divided into three estates: the Aristocracy, the Clergy, and the Third Estate (the middle class).
7. See Martin Pierre, Les systèmes électoraux et les modes de scrutin, 2d ed., Collection Clés (Paris: Montchrestien, 1997).
8. The case law of the two principal electoral courts in France—the Council of State, which reviews local elections and elections to the European Parliament, and the Constitutional Council, which reviews general elections—is nevertheless different. The Council of State is stricter and considers that if a substantial number of voters fail to use the voting booth, the election must be annulled (Judgment of February 12, 1964, Bonneuil-sur-Marne Municipal Elections, Recueil, 101), whereas the Constitutional Council is more flexible.
9. Created by Napoleon I in 1800, the Council of State plays the role of supreme administrative court. It is also the legal adviser to the government, which must submit all government bills to it for mandatory opinions before they are adopted by the Council of Ministers and laid before Parliament.
10. Called the "Chamber of Deputies" under certain Republics.
11. Note that the Senate, which by Article 24 of the Constitution ensures "the representation of the territorial units of the Republic," is part of a unitary state. Consequently, the number of senators per district is not the same everywhere but depends on the local population figures.
12. The High Court for England and Wales, the Court of Session for Scotland, and the High Court of Justice for Northern Ireland. Their judgments can be appealed to the House of Lords, which gives final judgment.
13. The history of successive Republics shows that Parliaments did not hesitate to exercise this power and allow political objectives to prevail over legal imperatives. When Blanqui was to be disqualified as a deputy, Clémenceau stated: "This House is neither a jury, nor a court: we are the Chamber of Deputies, i.e., a political body ruling on an election, i.e., a political measure," in Journal officiel des débats de la Chambre des Députés, 4. 6. 1879, p. 4618.
Even more blatantly, the Chamber had discredited itself at the time of the general election in 1956 by disqualifying, without genuine legal grounds, eleven deputies of the new "poujadist" party (a party set up to defend small tradesmen against excessive taxation) to replace them with deputies of the more traditional parties, in particular Socialists, Radicals, and Christian Democrats. See Loic Philip, Le contentieux des assemblées politiques françaises (Paris: LGDJ, 1961).
14. Other countries in Europe give their Constitutional Court jurisdiction in electoral litigation. Austria is a case in point. In other countries, Constitutional Courts are also involved but more indirectly (the Portuguese Constitutional Court) or less completely (the German Constitutional Court). In most countries, however, apart from Ireland and the United Kingdom, where electoral disputes are within the jurisdiction of the ordinary courts, it is the Houses of Parliament that are judges of the validity of the election of their members. See Francis Delpérée, Le contentieux electoral, Collection Que Sais-Je? (Paris: Presses Universitaires de France, 1998).
15. Thus Article 11 of the Constitution of 1958, as most recently amended, provides that
The President of the Republic may, on a proposal from the Government when Parliament is in session or on a joint motion of the two assemblies, published in either case in the Journal officiel, submit to a referendum any government bill which deals with the organization of the public authorities, or with reforms relating to the economic or social policy of the Nation and to the public services contributing thereto, or which provides for authorization to ratify a treaty that, although not contrary to the Constitution, would affect the functioning of the institutions.
Where the referendum is held in response to a proposal by the Government, the latter shall make a statement before each assembly which shall be followed by a debate.
Where the referendum decides in favor of the government bill, the President of the Republic shall promulgate it within fifteen days following the proclamation of the results of the vote.
(The referendum procedure can also be used to amend the Constitution in the circumstances envisaged by Article 89.)
16. "The Constitutional Council shall rule on the proper conduct of the election of deputies and senators in disputed cases" (Article 59) and "shall ensure the proper conduct of referendum proceedings and shall declare the results of the referendum" (Article 60)—the two forms of words conferring powers of different extent, as will be seen.
17. See "Elections présidentielles," in Pascal Perrineau and Dominique Reynié, eds., Dictionnaire du vote (Paris: Presses Universitaires de France, 2001), 386.
18. There is no need here to go into excessive detail on the legal problems posed by the procedure chosen for this referendum, which was not that required for amendment of the Constitution (Article 89) but for the adoption of certain ordinary or institutional acts (Article 11). It is probable that if the government had followed aproper procedure, it would not have managed to get its reforms adopted. At all events, on a reference contesting the statute enacted by referendum with a majority of 62.2 percent in favor, the Constitutional Council, in a Decision of November 6, 1962, held that it had no power to declare unconstitutional a statute that was "the direct expression of national sovereignty."
19. Quoted by Dimitri Lavroff, in "Le Droit Constitutionnel de la Vème République," in Collection droit public et science politique, 3d ed. (Paris: Dalloz, 1999), 450.
20. "Sur l'Election Présidentielle Américaine. Vestiges d'un âge prédémocratique et antimonarchique," Le Débat, January–February 2001, no. 113: 15.
21. The Federalist, ed. Benjamin F. Wright (Cambridge, Mass.: Harvard University Press, 1961) (A. Hamilton, No. 68), 441.
22. This role of neutral arbiter responsible for the general interest of the country is conferred by Article 5 of the Constitution of 1958, whereby "the President of the Republic shall see that the Constitution is observed," whereas that task is not expressly entrusted to the Constitutional Council, though it is its main function. This provision, which might appear astonishing in a state based on the rule of law, accurately reflects the nature of the presidency in the Fifth Republic.
23. That is the question raised by the electoral deadlines of 2002. The dissolution in 1997 upset the date scheduled for parliamentary elections so that, contrary to the practice since the beginning of the Fifth Republic, the general election should now intervene a few weeks before the presidential election. Hence the proposal of
24. The New York Times of November 27, 2000, reports remarks made by Al Gore whereby "[i]gnoring votes means ignoring democracy." This formula corresponds to the idea of certification of the presidential election by the Constitutional Council to ensure that the newly elected president enjoys full popular legitimacy.
25. The members of the Constitutional Council in France are appointed by political authorities; three members, including the president, are appointed by the president of the Republic, three by the president of the Senate, and three by the president of the National Assembly.
26. The distribution of the votes within the French Constitutional Court is not revealed, for in the French courts—the Constitutional Council being no exception—the practice of dissenting and competing opinions is unknown. Any judgment is strictly collegial, and although the names of the judges contributing to it are quoted in the decision, their individual positions remain secret.
27. At the urging of Charles Pasqua, several times a Gaullist minister, there was aplan in 1990 to adopt the system of primaries in France. The idea was that the right wing should overcome its internal divisions with a view to the presidential elections of 1995. The first primary system envisaged is set out in an internal charter of the two main right-wing parties (the UDF and the RPR), signed by them on April 10, 1991. The second system is presented in a draft bill submitted by Charles Pasqua to the prime minister at that time, Alain Juppé, on June 27, 1994. This would have provided for a consultation of all the registered voters on an electoral roll on the same day. It should be noted that François Mitterrand was in favor of primaries in France in 1969. Ultimately, the idea never took off. See Pierre Esplugas, "Lesystème des élections primaires est-il transposable à l'lection présidentielle française?" Revue Française de Droit Constitutionnel, No. 25, 21 (1995).
28. New Caledonia and French Polynesia are the main overseas territories.
29. Since 1988 the Council has produced the list of nominators on the basis of acomputerized process, which is essential as there are more than sixteen thousand nominations in any presidential election.
30. At the 1995 elections, the Council received eleven referrals, some of which were declared inadmissible and the others rejected on the merits.
31. Military service has now been abolished, and France has a purely professional army.
32. Krivine was actually performing his military service at the time, and the Council followed its usual practice of preferring a strict interpretation of the relevant ground of ineligibility. See Ducatel v. Krivine (decision given on May 17, 1969), Recueil, 78.
33. This situation can occur at the general election. The coalition parties having obtained a majority of the seats in the National Assembly might have only a minority of the votes in the country. This happened to the left-wing parties at the general election of 1978; they received a majority of the votes but a minority of the seats.
34. In France, elections are always held on Sundays.
35. The best-placed candidates can withdraw their candidacies at the second
36. It is hardly likely that a president of the Republic would be forced out of office because his election was annulled. That would place him in such an uncertain position as to make it difficult for him to do his job.
37. In practice, the results are declared even sooner, on the Wednesday or Thursday following the second ballot.
38. The electorate represented less than 40 million people at the time of the general election on May 1997. This was not important as many young electors did not register on the electoral roll. New legislation of November 1997 provides for an automatic enrollment, which gave an electorate of more than 42 million.
39. For an assessment of the review of the presidential election of 1988, see Bruno Genevois, "Le Conseil Constitutionnel et l'lection présidentielle de 1988," in Revue de Droit Public, 1989, 19, and Bernard Malinier, "Les aspects contentieux de la proclamation de l'lection présidentielle de 1988," Les Petites Affiches, July 6, 1988. For an assessment of the review of the 1995 election, see Olivier Schrameck, "Le Conseil Constitutionnel et l'lection présidentielle de 1995," Actualité Juridique de Droit Administratif, July 20, 1995.
40. With respect to electoral legislation, the Council plays its role of Supreme Constitutional Court. It can receive references contesting ordinary statutes, which it reviews for constitutionality like any other statute. Consultation by the government on institutional statutes is mandatory under the Constitution. Institutional statutes are so defined both by their contents (they apply constitutional provisions directly) and by the adoption procedure (they can be enacted by the National Assembly, which has the last word, only if there is an absolute majority of its members in favor).
41. In France, all commercial advertising techniques via the press or the audiovisual media are prohibited at the time of election campaigns.
42. Decision of July 25, 2000, on a referral by Stephane Hauchemaille, Recueil, p. 117.
43. Decision of March 14, 2001, on a referral by Stephane Hauchemaille (to appear in the 2001 Recueil).
44. In theory, as Judge Edmondson states in his dissenting opinion in Roe v. State of Alabama, 43 F. 3d 574, 585 (11th Cir. 1995), to protect the boundary between constitutional law and dispute resolution processes for state elections, the federal intervention requires "extraordinary circumstances affecting the integrity of the state's election processes."
45. Including financially: the state refunds to candidates who obtain at least 5 percent of the votes at the first ballot half of the electoral expenditure incurred by them, subject to the ceiling provided for by law.
46. Electoral rolls are kept by each of the thirty-six thousand communes in France.
47. Voters are supplied with adequate numbers of separate ballot papers for each candidate at each polling station. They also receive them by post in the days before the poll.
48. In Metropolitan (European) France, there are 36,000 communes, 100 departments, and 22 regions.
49. Blank votes are those where no candidate is actually voted for. Spoiled ballots are those that are somehow identifiable by means of, for example, erasures, corrections, perforations, or tears and, consequently, cannot be taken into account.
50. Each counting committee adds up the vote (as summarized in the official reports drawn up by the communes) in the presence of the candidates' representatives who can ask for complaints to be recorded in the official report of the counting committee (see hereafter).
51. See Romieu, President of the Litigation Department of the Council of State, in RGA, 1887, vol. 2, p. 426.
52. See his Traitédelajuridiction administrative et des recours contentieux, 1887, vol. 2, p. 318, quoted by Jean Pierre Camby, in "Elections: Contentieux électoral relevant du Conseil Constitutionnel," part of Répertoire du Contentieux Administratif Dalloz sur les élections, Paris, October 2000.
53. Voters who are temporarily absent from France or unable to vote can have their vote cast by proxy at the polling station.
54. Or in the case of a candidate's representative, in the official report of the departmental counting committee (see note 50).
55. At elections, it is quite common for the Council of State to annul the results. See in particular the judgment of June 2, 1967, Elections at Ghisoni, Recueil, 233.
56. See the decisions of May 10, 11, and 12, 1995, declaring the results. The Council was manifestly keen to take a didactic decision in order to avoid the generalization of the very French practice of closing down during the lunch hour.
57. Identity checks are obligatory in communes of more than five thousand inhabitants. In accordance with what was indicated above, this decision takes account primarily of the behavior of the presiding officer with respect to the magistrate delegated by the Constitutional Council.
58. See the declarations of the results of May 15, 1981, and May 11, 1988.
59. It is only at elections to Parliament that the Constitutional Council has had occasion to invalidate ballot papers bearing indications that might give rise to confusion. For example, it annulled ballot papers in the name of a party called the "Green Generation," whose logo was likely to cause confusion with the existing ecological parties (Ecology Generation and Greens). Decision 58 110/128 of April 23, 1959, National Assembly, Guadeloupe, Constituency 2, Recueil, 209.
60. Decision 95–2062 of May 3, 1996, Senator elections, Vaucluse, Recueil, 69.
61. In 1995 it annulled approximately 18,000 votes and restored 572 votes invalidated by a departmental counting committee at the first ballot. At the second ballot, it annulled approximately 11,000 votes and restored 12 votes also wrongly invalidated by a counting committee.
62. This article does not mention the question of the review—also exercised by the Constitutional Council—of the campaign accounts of candidates at the presidential election in France. The management of these accounts is now subject to rigorous conditions. The nature of income is limited as, since 1995, candidates have no longer been able to enjoy financing other than subsidies or loans from their political party, bank loans and advances and contributions from their members not being bodies corporate (in modest amounts). The parties themselves are financed only by the state and their individual members. Last, the amount of electoral expenditure
63. There is an abundance of case law along these lines as regards local elections.
64. Unlike the Council of State in relation to local elections.
65. See "Thalassee, Paris," Revue Dalloz, No. 5, 2001.
66. Section 50 of Ordinance 58–1067 of November 7, 1958, relating to referendums, made applicable to presidential elections by Act 62–1292 of November 6, 1962, on the election of the president of the Republic by universal suffrage.
67. This term of office was seven years until recently but was reduced to five years by a constitutional amendment on September 24, 2000.
68. For instance, at the end of 2000 the government laid before Parliament a bill eventually enacted as the Act of February 2001 referred to above.
69. See her article "La désignation des candidats présidentiels aux Etats-Unis," Pouvoirs, No. 14, 1980, Paris.
70. Editorial by James Reston in International Herald Tribune, February 9–10, 1980, quoted by Marie-France Toinet.
16. SEVEN REASONS WHY BUSH V. GORE
WOULD HAVE BEEN UNLIKELY IN GERMANY
Dieter Grimm
1. NO PRESIDENTIAL ELECTION
A direct parallel between the events of November and December 2000 in the United States and the situation in Germany cannot be drawn. The systems are too different. Whereas the United States is a presidential democracy, Germany can be characterized as a parliamentary democracy. The federal president, whose functions are more representative than political, is not elected by the people but by a special organ, the Bundesversammlung, composed of all members of the Bundestag (federal Parliament) and the same number of electors named by the parliaments of the various states (Länder). The chancellor is elected by the Bundestag. The people elect only the members of Parliament. This election is a direct one. The voters decide about the composition of Parliament without the intervention of electors nominated by the Länder.
2. ONLY FEDERAL LAW
Although German federalism is, generally, less dualistic than American federalism, it strictly separates federal and state spheres in matters relating to elections. The federal election is regulated by a federal law, the Bundeswahlgesetz (BWG). This law contains provisions as to suffrage requirements, composition and appointment of local, state, and federal election authorities, admission of candidates and parties, ballots, voting and counting procedures, control mechanisms, and so on. The technical details can be found in the Bundeswahlordnung (BWO), a regulation issued by the federal government. Another law, the Wahlprüfungsgesetz, regulates control of the legality of parliamentary elections. States and local communities have no
3. IDENTICAL BALLOTS
The design of the ballot is stipulated in the BWO. The ballots are printed under the responsibility of the federal government and have the same format in every Land and in every precinct. The ballot leaves little room for doubt about the voter's intent. After each candidate or political party there is a circle the size of a quarter. The voter marks, usually with a cross, the circle following the name of the candidate or party he or she wants to vote for. There is sufficient space between the circles to exclude unclear votes. Manual marks are the rule. Voting machines may be allowed by the Federal Ministry of the Interior in individual precincts, but each type of machine must be approved by the ministry. Section 39 of the BWG contains a list of circumstances under which an individual ballot may be ruled invalid. The decision about invalidity is made by the board of each polling station. The electoral board of the precinct has the power to review the decision of the station's board. All higher electoral authorities (head and board of each Land and head and board of the Federal Republic) are bound by the local decision and may only correct obvious counting errors. A review of the decisions is reserved for a special procedure (Wahlprüfung) that can be initiated only after the election.
4. EASY COUNTING
The ballots are opened and counted in every polling station by its electoral board immediately after the polls close. The manner of counting and, if necessary, recounting is prescribed in great detail by the BWO. Counting is open to the public, and the results at each polling station are known one to two hours after the polls close. Results are first reported to the local community where the polling station is located and then to the head of the electoral board of the precinct, which may review the results. This board's decision can be challenged only through the Wahlprüfung before the newly elected parliament whose decision is subject to review by the Federal Constitutional Court. The precinct authorities report the result to the head of the electoral office of the state, who in turn reports the result within the Land to the head of the federal election office. The provisional
5. LIMITED POLITICAL INFLUENCE
The counting and determination of the results of an election cannot be influenced by politicians. Direct political influence is limited to the appointment of the head of the electoral office. Historically, the head of the federal office has been the president of the Federal Bureau of Statistics. Likewise, the heads of the states' offices are usually the presidents of their various statistical bureaus. The heads appoint the members of the boards. Political parties that have candidates in a given precinct are represented on the board of that voting station. Cabinet members or other political officeholders are not involved in further electoral procedures. The question of whether a recount is necessary and how long it may last belongs exclusively to the board of the polling station and the board of the precinct. Political interference would be illegitimate.
6. NO JUDICIAL REVIEW BEFORE DETERMINATION OF THE FINAL RESULT
Voters, groups of voters, the heads of the electoral offices of the Länder and of the Federal Republic, and the president of the Bundestag have the right to challenge an election. The legality of the election is, in the first instance, controlled by the Bundestag itself, which has a special committee for this purpose. This means that doubts as to the correctness of the counting do not hinder the formation of the newly elected Bundestag. The decision of the Bundestag can be reviewed by the Federal Constitutional Court. Should an election be declared invalid, either totally or in part, it will be repeated nationwide or in those precincts where an irregularity occurred.
Thus far no national election has ever been declared invalid. Litigation in electoral matters usually concerns conflicts preceding the election (such as the admission of candidates or parties to the ballot, reapportionment of precincts, the principle of government neutrality in the campaign and of equal chances for the competing parties) or doubts as to the constitutionality of certain provisions of the election laws. The counting of votes has not been the subject of litigation, which would come before the Constitutional Court.
7. INTENT VERSUS TIME
Given the situation in Germany that has been described above, it is almost impossible that a case like Bush v. Gore could have reached the Federal
The German court would agree with the U.S. Supreme Court that, in electoral matters, equal protection applies, not only to the initial allocation of the franchise, but also to the manner in which it is exercised. This forbids any arbitrary or disparate treatment of voters. Yet, as neither state law nor state courts are involved in federal elections, the question of whether a state court met these requirements in its judgment could not have arisen. Had a lower court ordered a recount, as the Florida Supreme Court did, but failed to supply specific standards to ensure uniform treatment of the voters, this failure would not have rendered the decision defective because the standards are set forth in the Federal Election Law. Accordingly, there would have been no danger of different treatment.
According to its majority opinion, the U.S. Supreme Court did not remand the case with instructions on recounting because of the lack of time. It is most likely that this question, if it could have come up in the German Constitutional Court, would have been decided differently, provided the Court adhered to the principles it usually applies when it comes to a conflict of different constitutional requirements. In Bush v. Gore the conflict was between the requirement to ascertain the intent of the voters, on the one hand, and to meet the deadline for returns, on the other. Conflicts of this type are resolved in Germany by a balancing method. The respective weight of the competing requirements is determined, and then a decision is made as to which one prevails in the case at hand.
The first requirement is a material one of the highest order. In elections, the intent of the voter counts. The most important element to be secured by the election laws and the manner of their application is to determine the voter's intent. Otherwise the final result of the election would not be compatible with the intent of the voter, and the legitimizing bond between the people and the officeholders would be cut. The time limit, in contrast, is a formal requirement without a basis in the constitution. The reason behind it is not a principle of the highest order but of mere expediency. Evidence that failure to meet the deadline would result in a constitutional crisis, like creating an interregnum without a president, did not exist. Weighing the competing requirements thus, there can be no doubt that the German Constitutional Court (provided that it did not depart from established principle in a highly politicized matter) would have ordered that each voter's intent must be ascertained as accurately as possible.
17. BUSH V. GORE: A VIEW FROM ITALY
Pasquale Pasquino
Il n'est presque pas de question politique, aux Etats-Unis, qui ne se résolve tôt ou tard en question judiciaire.
ALEXIS DE TOCQUEVILLE
Electoral systems are algorithms that permit the transformation of a number of votes (N) into a smaller number of seats (n). Since the beginning of representative government, this essential mechanism of democratic states, like the right of suffrage, has been discussed extensively.[1]
Very little attention has been given, however, to each electoral system's point of departure, perhaps because the question of how to obtain N seems settled and unproblematic. This is the problem that emerged with unsuspected virulence during the very long month from November 7, 2000, election day, to December 12, 2000, when the U.S. Supreme Court decided that the American presidency should go to George W. Bush.
The question is how the votes are counted, not how they are transformed into a very small number of seats, or just one seat, as in the American presidency. It is on this seemingly banal question that the world's only superpower at the end of the second millennium got stuck, as in a giant swamp. The solution that lifted the aircraft carrier named America over the treacherous waters of the Florida count threatens, however, to discredit one of American democracy's most prestigious institutions: on December 12 the Supreme Court decided that it was too late to complete the ongoing manual vote count.
The Court's decision in Bush v. Gore is a strong candidate for being among the most incongruous and negative opinions it has issued. In Europe it has provoked a very negative opinion of American constitutional justice.
MEN, MACHINES, AND HOLES:
THE FIRST DECISION OF A FEDERAL COURT
Most attentive scholars of the American political system expected both a narrow electoral victory and a discrepancy between the popular vote and the Electoral College majority. Presidential elections are indirect elections that may result in a candidate winning the election without obtaining more votes than his closest competitor. Similar distortions may be seen in almost every method of determining the victor in an election.[2] The 1996 elections in Italy produced a comparable phenomenon: the center-Left obtained a greater number of seats in Parliament, even though the center-Right obtained a greater number of the popular votes. But no one could have expected what actually happened in Florida.
On November 8 the Florida Division of Elections gave Bush a 1,784-vote advantage over Gore. The next day, the mechanical recount reduced the Republican candidate's lead to 327 out of a total of about 6 million votes. Florida election law mandates that a mechanical recount of the votes be carried out when the leading candidate has an advantage of less than 0.5 percent of the votes. The difference between the two candidates given by the first official figure (1,784) amounted to 0.0299 percent of the total votes cast. This triggered an automatic mechanical recount. The law setting forth the procedures for protesting electoral results, Florida Statutes § 102.166 (2000), provides that within seventy-two hours of the election any candidate may request that the canvassing board in the county where the protest arises conduct a manual recount.
At this point, we Europeans discovered, with some surprise, that voting systems in the United States vary significantly from one state to another. For example, we became aware that Oregon recently introduced voting by mail for all its residents, which explains why its results were delayed for several days. Moreover, in Florida voting procedures vary from one county to the next. Of the state's 67 counties, one uses manually tabulated paper ballots (as in Italy), another uses a lever machine (as in New York City), 39 use a ballot requiring that the voter fill in the circle corresponding to the names of the candidates to be read by an optical scanner, and 26 use punchcard ballots. Experts have suggested that the margin of error in the Florida vote was on the order of 5 percent.
Between November 7 and November 11 the Democratic Party, on behalf of Gore, filed protests with the canvassing boards of four counties. Three of the four immediately ordered manual recounts.[3] On November 11 Bush's lawyers appeared in the U.S. District Court for the Southern District of Florida to ask for an injunction against these manual recounts. On November 13, Judge Middlebrooks denied the request.[4] The reasoning behind
The judge had to decide on an emergency motion for a temporary restraining order and a preliminary injunction against the manual recounts on the grounds that § 102. 166(4) of the Florida election law, pursuant to which the recounts were proceeding, violated the First and Fourteenth Amendments of the U.S. Constitution, in particular the Equal Protection Clause, which roughly corresponds to "the principle of equality" under the Italian constitution. Judge Middlebrooks carefully considered the constitutional issue arising under the principle of equality:
The thrust of Plaintiffs' position is that Florida's decentralized county-bycounty electoral system can yield disparate tabulating results from county to county. For instance, similarly punched ballots in different counties may be tabulated differently in a manual recount due to the introduction of human subjectivity and error.[5]
It is well known that three of the counties at the heart of the electoral protest (Palm Beach, Broward, and Miami-Dade) use perforated ballots, where the voter uses a stylus to punch out a perforated square of paper corresponding to the name of the chosen candidate. If all goes well, a little square of paper (called a "chad") completely detaches from the rest of the ballot, resulting in a hole that the optical scanning machine counts as a vote. But it is possible that the voter, unskilled in the use of the stylus, inadvertently detaches three, or two, or just one side of the chad. The machine interprets some of these as holes and others not. How do those who recount the ballots, applying Florida law, define a "hole"?[6] Is there a standard, unambiguous, universally accepted definition of what kind of a hole, or vote, is valid in the specific case for every canvassing board charged with the manual recount? And if there is not, and equal holes may be counted differently or different holes may be counted equally, would this be a violation of the principle of equality, understood as granting each citizen an equal vote?
Judge Middlebrooks, considering these objections, which would later be tackled by the U.S. Supreme Court, reasonably asserted:
These concerns are real, and, in our view, unavoidable, given the inherent decentralization involved in state electoral and state recount procedures. For instance, at least 48 states employ recount procedures—many of which differ in their methods of tabulation. … Unless and until each electoral county in the United States uses the exact same automatic tabulation (and even then there may be system malfunctions and the like), there will be tabulating discrepancies depending on the method of tabulation. Rather than a sign of weakness or constitutional injury, some solace can be taken in the fact that
Judge Middlebrooks stated further that the plaintiffs failed to demonstrate how and why the manual recount is so unreliable as to constitute a violation of the constitutional principle of equality, especially taking account of the fact that the electronic tabulation has a margin of error of about 5 percent. In the end, Judge Middlebrooks refused to enjoin the manual recount because "we do not find sufficient evidence to declare a law authorizing the use of a manual recount to be unconstitutional on its face."[8]
It is worth dwelling on this ruling because its conclusions are the ones that were to be overturned by the U.S. Supreme Court. Three general observations may be made. The 2000 presidential election revealed some problems with democratic electoral mechanisms. The first concerns the United States in particular: namely, the extraordinary disparity of voting mechanisms, tabulation, and protest procedures dramatically revealed in Florida. This produces uncertainty concerning the fairness and clarity of the results. One hopes Congress will encourage the states, charged by the Constitution with making election law, to unify these procedures.
The second problem is a general one concerning all voting systems. In every computation of a great number of entities, whether ballots, holes, or anything else, there exists, as statisticians tell us, a certain margin of error.[9] In the case of elections, the gap between the various candidates is generally significant enough to make us forget that a situation may arise in which the numerical difference is minimal and falls within the margin of error. This opens two, not necessarily alternative paths: fix the voting and vote tabulation systems to minimize the margin of error; or accept that in some very rare cases elections will not succeed in choosing a candidate. At first glance, the second alternative seems unacceptable. The first alternative suggests using an electronic vote, which easily permits checks by both the voter and the institution in charge of the count.[10] The electronic vote naturally presents the problem of protecting the secrecy of votes.[11] But this simply demonstrates that there is no perfect solution to the problem under discussion and that it merits much more attention, discussion, and research than it has been given in the past.
The third problem is that political science research, long focused on the study of electoral systems, has not, to my knowledge, addressed the mechanics of voting and the methods of vote counting in different countries. There is a legal literature dealing with the norms regulating contests of electoral results,[12] and this ought to be developed with a comparative view to other systems. For instance, in Italy, Parliament has competence over
A COURT OR A PARLIAMENT?
The U.S. Supreme Court's first intervention in the electoral contest seemed to me ambiguous and, to a certain extent, inconclusive. It is a fact that the Court decided to accept the case on November 24, surprising many observers (and notwithstanding the opposition of some of its members) and transforming a political question—the choice of the president of the United States—into a legal one. It is also a fact that from November 24 until the Court's final decision on December 12, the Court became the center of the attention of the country, the press, and the mass media, even as the conflicts in Florida were intensifying.
Bush's lawyers aimed with their petition to overturn both the decision of Judge Middlebrooks and that of the Florida Supreme Court, which seemed too favorable to Gore.[14] The Supreme Court's per curiam December 4 decision paid the price of opacity for painfully achieved unanimity.[15] The Court vacated the decision of the Florida Supreme Court and asked it to justify its decision in a more satisfactory way, apparently maintaining an interlocutory stance.[16]
This gave the Florida Supreme Court one week to clarify its position. On December 6, the Eleventh Circuit Court of Appeals rejected Bush's appeal of Judge Middlebrooks's decision. By November 26 Secretary of State Harris had already certified Bush the winner of the Florida election. On December 8 the Florida Supreme Court—this time split four justices to three[17]—handed down a new opinion, insisting that the manual recount of the nine thousand ballots in Miami-Dade County be continued and requiring Harris to add votes identified by the manual recounts to those officially attributed to Gore. Bush's lawyers then filed an emergency application for a stay of the manual recounts, and the U.S. Supreme Court, in a 5–4 decision, issued its December 9 stay suspending the recounts.[18]
At that point the alignments within the Supreme Court became clear. What most surprises an observer of constitutional courts, which usually deliberate in secret and without dissenting opinions, like the French and Italian courts, is that the U.S. Supreme Court, like a nineteenth-century parliament, is divided into a liberal Left, a conservative Right, and a powerful "swamp" of the center, the median justices in the language of political science, on whom the essential decisions depend. The oldest justice on the Court, Stevens, in his dissenting opinion of December 9, declared that the majority's decision "departs from … venerable rules of judicial restraint
Faced with such an explicit attack, which threatened to disqualify the majority's decision in the eyes of the public and accused it above all of abuse of power, Justice Scalia, ideologue of the conservative wing of the Court, felt obliged to defend the majority decision, a highly unusual practice in the context of granting a stay. In his brief concurrence, Justice Scalia tried to counter the legitimacy of counting every valid vote by arguing that the important issue is the very validity of such votes and that they cannot be counted first, leaving for later what the criteria of validity ought to be. It is this way of proceeding, he stressed, that would undermine the public acceptance of the results that democratic stability requires. In contrast to Judge Middlebrooks's opinion, Justice Scalia insisted on the fact that the standards for the determination of the intention of the voter must be the same in each county (which provides a ground for declaring Florida law unconstitutional for violating the principle of equality).
It is clear that the majority and the dissenters were divided on an important and complex question: May the contested votes be manually counted, leaving the criteria of validity (or, more concretely, when a hole is a hole) to the individual county canvassing boards, or must such criteria rather be fixed and objective and binding on all boards before counting begins? And who must fix these criteria?
Naturally, it is doubtful that there are such objective standards; certainly, homogeneous criteria may be authoritatively fixed, but unless one trusts the canvassing boards, what way is there to make sure, for example, that the homogeneous standards are uniformly applied? The Court may have had other ways out of this problem, to which I shall return in the conclusion.
The December 12 per curiam opinion probably expressed the positions of Justices O'Connor and Kennedy—the two justices who de facto decided the forty-third president of the United States. This decision turned on the Equal Protection Clause, a constitutional provision introduced after the Civil War to protect the "new" American citizens created by the abolition of slavery. The point again is that of the need for equal standards to be used in ascertaining the voter's intention. The majority opinion argues that it is possible to set these general criteria and, simultaneously, that there is no time to do so. These, essentially, are the reasons that led to overturning the decision of the Florida Supreme Court and the final acceptance of Secretary of State Harris's November 26 certification.
In the course of oral argument, the justices did interrogate Gore's lawyers on the possible homogeneous criteria for a manual recount of the ballots, though without obtaining a response. It also seems that Justices Breyer and Souter attempted to strike a compromise within the Court on this point but without success. My impression is that the Court's use and abuse of dissenting opinions discourages discussion and internal deliberation. It also dedicates very little time to the "Council Chamber,"[20] another factor making compromise very difficult. More than a judicial body, the U.S. Supreme Court seems, at least to European eyes, like a miniparliament, with its majorities, minorities, and ideological contests.
Applying the Humean principle of tolerance,[21] one may argue that the majority's choice was guided by the will to avoid a constitutional crisis.[22] But this crisis would have been a perfectly manageable one. Effective laws and a certain number of historical precedents[23] enable us to imagine an alternative scenario to that imposed by the Supreme Court majority. First of all, it is not at all evident that the final result of the manual count would have been unfavorable to Bush. With their decision, the (conservative) majority justices gave the unpleasant impression of wanting to protect Bush from every risk. Suppose that the Florida vote favored Gore in the end. On December 18 the Electoral College would probably have received two lists of electors from Tallahassee, the Republican one sent by Secretary of State Harris and a Democratic list certified by the Florida Supreme Court. In this case, the Electoral College would not have been able to reach a clear majority and would have had to defer the final decision to Congress.
Certainly this solution would have kept the country in relative uncertainty for yet another month. And it would have assured the White House for Bush, given that the House of Representatives, which had a clear Republican majority, decides the presidency. But perhaps it would have led to Lieberman's selection as vice president, since the vice presidency is decided by the Senate, which at that point had fifty Republicans and fifty Democrats and would have been subject to a tie-breaking vote by the vice president, Gore.
But the vote of just one justice was enough to elect Bush the forty-third president of the United States. The arguments used to justify this choice are highly contestable and have been contested. But the fact remains: the majority of the Court arrogated to itself the right to choose the president, who is the one who chooses (with the consent of a simple majority of the Senate) the members of the Court. Beyond the difficulty in considering the majority's arguments irrefutable, it is difficult to say that the justices behaved in an elegant fashion. Leaving the choice of the president to Congress, the justices would have given to Caesar that which is Caesar's: to a politically responsible body, the burden of a choice that falls, in principle, to the
The U.S. Supreme Court, in deciding to choose he who will choose its own future members, consumed an enormous amount of credibility as an impartial organ. "Millions of Americans," wrote Cass Sunstein at the end of the struggle (and surely millions of Europeans think this as well), "believed that the court had acted in an unacceptably partisan manner. … Bush v. Gore raised widespread doubts about the neutrality of the Supreme Court."[24] Considering the very high institutional cost of this likely consequence, Justice Breyer wrote in his dissenting opinion that "the Court was wrong to take this case."[25] In Bush v. Gore everything leads to the thought, at least on the other side of the Atlantic, that the Supreme Court abused its power, substantially harming its image as an institution super partes. Unless there is a more profound misunderstanding, Americans are in fact disposed to accept the partisan political character of their judicial power.
In a recent book on justice, a prominent scholar of the Italian judicial system writes aptly that the judge, a neutral third with the job of resolving a conflict between two parties, must convince them that he or she is not taking sides. "His or her impartiality—and above all his or her image of impartiality—is thus preserved and, moreover, strengthened as much as possible."[26]
Whatever the reasons motivating the individual justices, the majority's decision cannot be seen as illustrating the indisputable prestige and impartiality of the supreme organ of judicial power in the United States. It seems, unfortunately, to have behaved like a politically irresponsible miniparliament rather than as a high court of justice.
NOTES
Epigraph: De la démocratie en Amérique, vol. 1 (Paris: Gallimard, 1986), 401 (De l'esprit légiste aux Etats-Unis, et comment il sert de contrepoids àla démocratie): "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question" (Democracy in America [New York: Vintage, 1945], 290). I owe this quotation to John Ferejohn, whom I thank.
1. See, e.g., Pierre Rosanvallon, La rivoluzione dell'uguaglianza (Milan: Anabasi, 1994); and Pierre Martin, Les systèmes électoraux et les modes de scrutin (Paris: Montchrestien, 1994).
2. Taking this into account, the diffuse criticism of the institution of the Electoral College (I am thinking of the pieces by Ronald Dworkin, chap. 4, this volume; and Akhil Amar, New York Times, November 9, 2000) does not seem particularly pertinent, especially a posteriori. Furthermore, to abolish it and introduce the direct election of the president would require a constitutional amendment, very difficult to obtain given the opposition of the small states that have the right to veto any constitutional reform (see the fine interview of Kathleen Sullivan on the editorial page of the New York Times, November 15, 2000).
3. In particular, on November 13, as we shall see in looking at the first important legal decision, a manual recount had been authorized in three districts in Broward County. The decision was being awaited in Miami-Dade County. In Palm Beach County the authorization had been given for all the districts. And finally in Volusia County, after the confirmation in district 216 of the poor functioning of the floppy disk containing the program for the electronic count of the votes and its replacement, a manual recount of all the ballots in the county was authorized.
4. Siegel v. LePore, 120 F. Supp. 2d 1041 (S.D. Fla. 2000).
5. 120 F. Supp. 2d at 1051.
6. On the not so simple ontology of the same, see R. Casati and A. Varzi, Holes and Other Superficialities (Cambridge, Mass.: MIT Press, 1994).
7. 120 F. Supp. 2d at 1051.
8. Id.
9. I am indebted to Molly Przeworski for this observation.
10. The voter may check the accuracy of his or her vote on the screen before finally confirming it; furthermore, a computer system can quickly recount the electoral results many times, reducing the margin of error.
11. Electronic voting has been instituted in Belgium, and the German government proposes its introduction on a national scale in 2002. On some of the problems posed by this type of voting, see "County in California Touches Future of Voting," New York Times, February 12, 2001 (discussing the experience of Riverside County). Note that 9 percent of American citizens already vote with an electronic touch screen. On electronic democracy more generally, see S. Rodotà, La démocratie électronique (Paris: Apogée, 1999).
12. I am familiar with the work of Maria Vicenta Garcia Soriano, Jueces y magistrados en el proceso electoral (Madrid: Centro de Estudios Politicos y Constitucionales, 2000).
13. In regional elections, administrative courts and the Council of State are competent.
14. Italians were negatively struck by the fact that all seven justices of the Florida Supreme Court are Democratic nominees and, moreover, by the fact that in America all federal judges are chosen by a simple political majority—in contrast to Kelsenian systems of constitutional justice, in which the nominations for a super partes organ are exempt from the majoritarian principle.
15. Bush v. Palm Beach County Canvassing Board, 121 S. Ct. 471.
16. See, e.g., the comment on this decision published by Cass Sunstein in the New York Times, December 5, 2000.
17. Gore v. Harris, 772 So. 2d 1243 (2000).
18. Bush v. Gore, 521 U.S. 98 (2000).
19. Id. at 513 (Stevens, J., dissenting).
20. The Italian Constitutional Court discusses all of its decisions collectively, and the most important ones at length, in collegial meetings (called the jurisdictional chamber councils) that occupy the justices for twenty-one weeks a year.
21. As did Burt Neuborne so elegantly in a series of fictitious opinions that develop the justices' opinions; see chap. 9, this volume.
22. This is the argument made by Richard Pildes, in chap. 3, this volume.
23. For example, the Tilden-Hayes presidential election of 1876.
24. Chronicle of Higher Education, January 5, 2001 (reprinted in E. J. Dionne and William Kristol, eds., Bush v. Gore. The Court Cases and the Commentary [Washington, D.C.: Brookings Institution Press, 2001], 339–40).
25. In Bush v. Gore. The Court Cases and the Commentary, 132.
26. Carlo Guarnieri, La giustizia in Italia (Bologna: Il Mulino, 2001), 14.
18. DEMOCRACY IN AMERICA:
A EUROPEAN PERSPECTIVE ON
THE MILLENNIAL ELECTION
Mattias Kumm
There are still many for whom the basic constitutional structure of the United States is regarded as an attractive model for what the European Union ought to become. The attraction of the United States in this respect is obvious. The political structure established by the U.S. Constitution is perceived as having provided a remarkably stable institutional framework over a span of more than two centuries. During this time, the United States was able to develop from little more than a coalition of rebellious colonies into a global power whose cultural appeal, scientific prowess, economic prosperity, political clout, and military might have few if any historical equals. Most important, the U.S. Constitution as it is understood and interpreted today has established a federal system based on the universally appealing principles of liberty, equality, democracy, and the rule of law— the very principles the European Union professes to be based on. From this point of view, when the presidential election gives rise to intense public debate and a barrage of litigation, ultimately resolved by the Supreme Court on constitutional grounds, important lessons of principle promise to be learned. Given the extensive debates in Europe about how to constitutionally organize democracy on the level of the European Union, such lessons would promise to be both timely and useful.
There are a variety of claims that undermine the idea that there is anything of interest that could be learned from looking at the United States generally and the events surrounding the 2000 election specifically. They all have in common that they are based on an exceptionalist account of either American democracy or European constitutionalism. First, there are two kinds of exceptionalist claims focusing on political culture. According to these accounts, nothing can be gained by engaging in a comparative endeavor because American democracy is exceptional. American democracy
In the following I briefly describe these positions in greater detail. As will become clear, the 2000 election has thrown light on some basic features of constitutional democracy in federal systems that challenge widely held views about U.S. constitutionalism and undermine exceptionalist accounts of European constitutionalism. As the responses to the election indicate, it is no longer obvious whether the conception of constitutionalism that underlies American constitutionalism today should be conceived as a federal one properly understood, whereas there are no such grounds for doubt on the level of the European Union.
POLITICAL CULTURE, EXCEPTIONALISM, AND AMERICAN ELECTIONS:
THE GOOD, THE BAD, AND THE UGLY
If one were to follow the general public reaction, as it is reflected in countless articles in journals and newspapers throughout the European Union, there would not be much beyond voyeuristic curiosity warranting an examination of the events surrounding the last U.S. presidential election. The only thing that could be learned is that the United States is not like Europe: Exceptionalist interpretations of the events surrounding the election dominate. Whether the accounts are respectful and even admiring or aggressively contemptuous and condescending, the United States is cast as the Other: a peculiar political creature, suitable either to marvel at in wonder or to exhibit and make fun of at a freak show but not something to relate to and learn from. Simplifying somewhat, it is possible to distinguish two kinds of exceptionalist interpretations. A stylized rendition of both follows.
1. The Postelection Drama as Ritual: Affirming the Democratic Faith
The first interpretation is generally positive. The drama surrounding the election made visible all those traits of American political culture described
After it becomes clear that the outcome of the election remains uncertain, an intense and widespread, in part even obsessive, public debate ensues about how the winner should be determined. As recounts and litigation take their course it is not only the law professors and other talking heads appearing on the national networks who put their lives on hold. Intricate electoral details are the stuff of water cooler exchanges in offices throughout the European Union. Conversations easily move from issues of fundamental principle to arcane details concerning the state of chads, ballot design, or voting machines. As the recounts proceed, the ticker tapes running on personal computer screens no longer reflect the performance of investment choices and market developments. Instead the streams of numbers flowing by are likely to be the latest ballot counts, as they come in district by district. Debates over legal technicalities concerning procedure and litigation strategy abound in public forums and private conversations. Newspapers are full of unedited court decisions dealing with various aspects of the election, to be devoured, dissected, and debated by the populace.
Yet even though the election outcome determines who is to become the most powerful public official in the most powerful nation on the globe, there is no real sense of constitutional crisis, punditry rhetoric to the contrary notwithstanding. Citizens do not for a minute start wondering whom the Pentagon will support. No generals in uniform give press conferences expressing their concerns and willingness to assume responsibility at a time of national crisis. No armed militias gather to do battle on the streets in defense of a just cause. Except for some noisy demonstrations outside counting rooms, all remains calm. The president in power does nothing to seize the moment to extend the length of his term. He does not wag his mighty finger announcing to the nation that "these candidates Mr. Bush and Mr. Gore" would both be unfit to assume the presidency in circumstances that amount to an electoral tie. He does not proclaim that, in the interest of national unity, a new election would be necessary and that it would take place after substantial electoral reform had occurred, to be undertaken with great care, all deliberate speed, and in the fullness of time.
What is more, when the highest court in the country in substance hands down a decision that declares the winner, there is a widespread consensus not only that the decision is seriously flawed but also that it should be accepted as authoritative. Calls to end the dispute prevail. The candidate declared defeated puts on a good face and makes a valiant concession speech. The new leader assumes his role, as the citizenry lets go and moves on. One hundred days after his inauguration the new president enjoys an
2. The Postelection Drama as a Strategic Struggle for Power: American Hypocrisy
A second account is less flattering but more frequently found. According to this account, the United States should no longer be regarded merely as an imperial power that executes juveniles, imprisons a fair segment of its population, celebrates guns, ignores its poor, and yet has the audacity to lecture other countries on democracy. Following the election, it also stands revealed as incapable of organizing its own electoral process in a way that plausibly meets the standards to which third world countries are held. Not least among the long list of deficiencies ranks the fact that some of the most consequential decisions were made by political officials who were anything but impartial. Instead they were intimately involved in the campaign and their political future closely connected to the outcome of the election. Does a country's democratic process deserve to be taken seriously when the state officials ultimately making the decisions in a close election are the co-chair of one candidate's state campaign (Katherine Harris) and the same candidate's brother (Jeb Bush)?
The whole debacle ends when the Supreme Court, sharply divided along political lines, declares the winner by judicial fiat. It does so in a decision that is scandalous from the perspective of legal integrity. Had the factual situation underlying Bush v. Gore been used as a hypothetical in law school examinations before the election few self-respecting law professors in the United States, including conservative ones, would have given passing grades to the majority opinion. Furthermore, no one acquainted with the jurisprudential sensibilities of the justices in the majority seems to seriously believe that the same outcome would have been reached if the positions of Gore and Bush had been reversed.
If this is true, so the argument goes, much of what America purports to be standing for on the level of political ideals stands revealed as hypocrisy. The commitments to democracy, the ideal of a constitutionally based rule of law, and the ideal of judicial integrity have all been undermined by the spectacle of the postelection quagmire. The case not only explains the peculiar resonance that critical legal scholars have had with their spectacular claims in American legal culture. It also explains the increasing tendency to use a rational-choice approach to explain and predict judicial decision making. Furthermore, the events surrounding the millennium election exemplify in the realm of domestic politics what is also frequently thought true for American foreign policy. Beneath the thin veneer of a
FROM CULTURE TO INSTITUTIONS: CONSTITUTIONAL EXCEPTIONALISMS
1. American Exceptionalism as Constitutional Historicism?
Even those who remain unimpressed by these somewhat rough-grained interpretive renditions of the events have reasons to doubt the idea that there is something of interest that can be learned by studying the 2000 election. Many Americans believe that the events surrounding the election cannot be appropriately understood as a debate between different institutional actors on how to apply complex constitutional principles to a hard case. Generally, however, they do not believe in the fundamental corruption of their public institutions either. Instead they believe that the elections have brought to light the discrepancy between the electoral system as it is constitutionally entrenched and the principles that today are thought to underlie presidential elections. The disconnect between the principles generally thought to underlie presidential elections and the specific legal rules governing presidential elections established by the Constitution makes apparent the urgency of reform. More specifically, the Electoral College and how it is constituted is thought an outdated eighteenth-century relic. It is based on an elitist conception of government that no politician would dare endorse today. The point of elections, particularly the election of a national president, is to determine and reflect the will of the people. No one today would seriously defend the proposition that the people cannot be trusted to directly elect the president; that instead a college of distinguished and independent citizens should determine who the president and the vice president should be after deliberating the issue by themselves. Furthermore, it is today considered odd that state legislatures have the power to determine how the electors are to be chosen. According to Article II of the U.S. Constitution, state legislatures even have the powers to cancel presidential elections in their states and determine their electors. It is these kinds of anachronisms that, because they lack grounding in plausible principle, generate legal complexities that become susceptible to partisan manipulation.
2. European Exceptionalism as Constitutional Supranationalism?
Skepticism is further compounded by a view that is increasingly gaining acceptance in the European Union. According to this view, the federal system as it has matured in the United States should not be regarded as a model for things to come in the European Union. The reasons invoked by proponents of this view have nothing to do with the American exceptionalist accounts sketched above. Instead proponents of this view insist on the specific nature—the sui generis character—of the European Union. The European Union is described as a historically unprecedented supranational experiment in which member states collectively pool their sovereignty at the supranational level. They create institutions that—for reasons of regulatory efficacy—have the power to enact legislation that is directly effective in the legal orders of member states and generally takes precedence over national laws. Member states are not, however, creating a new sovereign entity legitimated by a European People. National traditions— so the argument goes—are too diverse, run too deep, and are ultimately too valuable a cultural asset to sacrifice on the altar of European integration. It is neither feasible nor desirable to achieve the kind of homogenization of political culture and civil society that sustains independent representative political institutions and democratic processes on the central level.
Since democratic legitimacy cannot effectively be achieved on the level of the European Union by the establishment of democratically effective representative institutions, decision making on that level is limited in a variety of ways in which decision making in mature federal systems such as the United States are not. First, the European Union should act only when member states cannot do so effectively. To implement this basic idea, the
THE LIMITS OF EXCEPTIONALISMS AND THE LESSONS OF THE ELECTION:
FEDERAL CONSTITUTIONAL DEMOCRACY AND THE ROLE OF STATES
Of course, much would need to be said about such an account of the European Union and much would need to be said about the particular conception of U.S. federalism that is cast in the role of a counterexample to illustrate the specifics of the European supranational model. Ultimately, the European exceptionalist account in the form I have briefly sketched above fails to provide either a normatively convincing model of the European Union or a convincing account of federalism in the United States. All that can be done in what follows, however, is to briefly illustrate how the 2000 election has brought to light an important feature of federal elections that tends to undermine the kind of accounts provided by European constitutional exceptionalists and American constitutional exceptionalists. My argument proceeds in three steps. First, I point out some striking and generally ignored institutional features of the electoral process in the United States that the election has highlighted. Second, I briefly discuss the significance of these features for a normatively appropriate understanding of federal constitutional democracy. Third, I discuss some implications of federal constitutional democracy thus conceived for understanding European constitutionalism. More specifically, I argue that federal constitutional democracy provides a more appropriate conception of European constitutionalism
1. The Role of the States in the Presidential Elections: Beyond the Popular Vote
Perhaps the most striking feature of the American presidential electoral process is the role of states. To start, there are two ways in which the makeup of the Electoral College takes account of the special role of states, each of which creates the possibility of winning the presidency while losing the popular vote. First, there is some deviance from the principle of straightforward majoritarianism in favor of equality of states by giving small states a proportionally larger say in the makeup of the Electoral College. Second, the winner-takes-all system that applies to each state's electoral votes is also geared toward strengthening the role of the states. The system is thought to provide an incentive for candidates to campaign in smaller, less populous states rather than focus their resources on the more densely populated urban areas. Furthermore, states are responsible for drafting the laws governing election to national office. Finally, it is also the case that political parties and the political machinery that supports them are largely rooted in state politics, requiring candidates for national office to establish close connections to a state's party apparatus.
2. Federal Constitutional Democracy and the Will of the American People
Although there is no doubt that some aspects of the system, the Electoral College specifically, are outdated, some continue to believe that it is a good thing for states to have an important role in the electoral process. Of course, the president, perhaps more than any other federal officeholder, is thought to represent the American people as a whole. The outcome of the elections, therefore, should also be geared toward reflecting the will of the American people as a whole. But even though the point of the election is to ascertain the will of the American people as a whole, there are consequences for the kind of electoral procedure that is appropriate to articulate and define what is to count as the collective will, given that the American people are organized in a federal structure. Conversely, the ideal underlying elections to federal office in federally structured entities is not necessarily to determine which candidate gets the relative majority of the popular vote. An appropriate construction of the will of the American people through the electoral process need not be identical
This is so because it may be desirable to bring to bear on the political process the significance of the fact that American citizens are also citizens of a constituent state. Is there anything in this claim we have reason to be puzzled about?
If the U.S. Constitution is best understood as an institutional framework through which the American people govern themselves, this does not imply—as Rousseau had thought—that popular majoritarianism would have to be the central organizing principle for political decision making. Instead the ideal of self-government is a complex one and integrates a wider range of principles. The possibility of legitimate countermajoritarian decision making has long been discussed and is no longer thought to present amajor issue. Just as judicially enforced fundamental rights can be countermajoritarian and just as congressional decision making can be countermajoritarian, it can also be the case that electoral procedures may legitimately provide for outcomes that are countermajoritarian.
It should also not be regarded as particularly puzzling as a matter of principle that in some way or another, the reasons justifying deviance from majoritarian decision making are not restricted to the protection of fundamental rights. Instead deviance from majoritarian decision making is, in many instances, constitutionally justified, because it gives expression to the significance of the fact that American citizens are also citizens of a constituent state. Just as the regulatory authority of the federal government is limited in order to protect the autonomy of states and just as the makeup of the Senate reflects respect for the equality of states on the level of federal decision making, there is nothing surprising about having states play a role in federal presidential elections. All of these institutional devices are means to protect, enhance, and bring to bear on the political process the significance of the fact that American citizens are also citizens of a constituent state.
Of course, this begs the normative questions: What is the normative significance of the fact that American citizens are also citizens of constituent states? And how does this significance relate to specific questions of institutional design? These are questions that cannot be dealt with here. It is sufficient to point out that something that at first may appear a peculiar quirk in the electoral regime fits into the federal constitutional design generally. It is a pervasive feature of the constitutional structure of the United States that it acknowledges the significance of the fact that American citizens are also citizens of constituent states. As such it is a principle that should be regarded as a constitutive part of any plausible account of federal democratic constitutionalism.
3. Federal Constitutional Democracy: Conceiving European Constitutionalism
If this is so, are there any reasons why constitutionalism in the European Union should be understood in a fundamentally different way? The main reason why many European scholars feel uneasy about using the language of federalism to describe the constitutional structure in the European Union is that national identities generally remain strong and deeply rooted in the member states. A complementary European identity is emerging only slowly and is not likely to have the cohesiveness and robustness of national identities anytime soon. There are two ways this fact is thought to be relevant for questions of institutional design. According to the first, the plurality of national identities are an asset and have inherent normative value. They deserve to be cultivated and enhanced, not gradually undermined and ultimately abolished. Because identities can be fostered by political practices that involve national institutions and tend to be undermined by political practices on the European level in which no reference to national identities is made, national institutions should continue to play an important role on the level of the European Union. A second argument does not make a normative claim about the inherent value of this or that identity but focuses on the empirical features of the democratic process that are claimed to be necessary for generating legitimacy and sorely missing on the European level. The claim is that because of the lack of a robust civil society on the European level and the lack of the necessary infrastructure of intermediaries between European institutions and European citizens—a European press, European political parties, and European public policy groups; in short: the lack of a well-constituted European public sphere—supranational electoral procedures and institutions are unlikely to be democratically meaningful. Because of this, democratic legitimacy is thought to remain closely tied up with efforts to link decision making to national actors and institutions. For these reasons the normative significance of the fact that European citizens are also citizens of constituent states is not puzzling in the European Union. What follows from this?
If, contrary to the federal democratic constitutionalist account provided above, one believed that a mature federal system is a strongly nationalized system in which the role of states is generally restricted to one of little more than administrative convenience, then the argument that the European Union is not and should not develop into a mature federal system would be very strong. Under this scenario there would seem important differences between Europe, where the role of states is significant for good reasons, and the United States, where the role of states is comparatively insignificant. If the United States were conceived as such a strongly nationalized system, not just the Electoral College but even the Senate as an institution— and certainly the ideas of substantive limits on congressional authority to
If, however, a very different account both of U.S. constitutionalism and of mature federal systems generally is more plausible, the case for an exceptionalist account of European constitutionalism may lose its bite. If, as suggested above, federalism refers to the idea of a multilevel political structure, in which respect for the relative independence of constituent states is taken seriously across the whole range of issues in which it is implicated, giving expression to the normative significance of the fact that a federal citizen is also a citizen of a constituent state, then it is a mistake not to conceive of the European Union in federal terms. It is important to clarify what this means. It does not mean that the European Union should become like the United States with regard to particular institutional arrangements. It does not mean that legislative decision-making authority should be allocated in the European Union the way it is allocated in the United States or that elections should be organized along similar lines. It does mean, however, that the basic conceptual framework in which questions of constitutional design and allocation of decisionmaking authority are addressed should be the same. This implies that European constitutional practice ought to be conceived as the self-government of European citizens, just as federal decision making in the United States is appropriately conceived as the practice of American citizens governing themselves through the institutional framework the Constitution has established. Of course, citizens of the European Union, like citizens of the United States, are also citizens of constituent states. This has implications for the kind of institutions, electoral processes, and regulatory authority that are appropriate for federal
It is very probable that the role of states in the federal process and the significance of legislative jurisdictional limits to central legislation should be significantly greater in the European Union than in the United States. The deeply entrenched cultural differences between European states, the comparatively strong sense of national identity, and the comparatively weak development of a European identity may well be valid reasons to insist on amore significant role for states in the context of the European Union.
Conversely, it is also the case that the nationalization of much of public life during the twentieth century and the absence of deep cultural differences reflected in the geographic boundaries of states justify political and legal practices in the United States that would not be tolerable in the European Union. Indeed, in the United States it is no longer obvious that there is any normative significance at all attached to the fact that American citizens are also citizens of constituent states. Some would go so far as to argue that the United States has in fact become a polity in which the federalist elements have lost their normative significance altogether. But if this were to be the case, then all this would imply is that the idea of federalist democratic constitutionalism as described above no longer fits the United States. Except for some constitutionally entrenched anachronisms burdening the political process and best left ignored by the federal judiciary, the United States would have become an entity resembling a unified national polity. Of course, the constitutional relics would be misused and abused by political actors for strategic purposes, thereby corrupting the political process. And the government would, for reasons of administrative efficiency— at its political discretion—leave the issues it would not want to deal with to the states. But even if this were a normatively convincing account of American constitutionalism, the reason why the European Union should not become like the United States so conceived is that the European Union has a reason to insist on its federalist constitutional structure, whereas the United States has long given up on it or may have reasons to move beyond it.
If the above account is correct, European constitutionalism is misconceived as an exercise of states pooling their sovereignty leaving national demoi the task of legitimating European political decisions. It is neither the states nor the national demoi that, under a federalist democratic constitutional conception of the European Union, are the Masters of the Treaties. That role is reserved to European citizens, who also happen to be citizens of the constituent states. Because citizens of federal polities are also citizens of constituent states, state institutions can and should have a role in the process elaborating and defining the will of the wider citizenry in federally structured polities.
Given the situation in the European Union, there are good reasons why states continue to play a significant role in its constitutional structure. How to understand the constitutional role of states in the United States at the turn of the millennium is a more difficult question. That states actually have a central role to play in federal presidential elections in the United States is a fact the presidential elections drew attention to.