Popular Election of Presidents?

December 14, 2000

Now that Al Gore has finally and truly and irrevocably and even graciously conceded defeat, let’s step back and take stock. Why did we get this horrible postelection contest for the presidency?

Having an apparent edge in the popular vote, Gore chose to contest the razor-thin Florida race, on which the electoral vote depended. George Bush (can we drop the “W” now?) led there by a few hundred votes. Though it was a startling departure from tradition, can we really blame Gore for contesting the results?

But his challenge soon led to a dizzying series of arguments over fine details, and the case wound up in the courts — first the Florida courts, then the U.S. Supreme Court, which eventually ruled that an equitable recount was no longer possible. That froze the earlier result, making Bush the victor.

Is there anything wrong with taking the election result to court? I don’t see why. If there had been a serious question of vote fraud, a court might well have had to step in and reverse the apparent result. Other irregularities, even if unintentional, might also warrant adjudication. In the last analysis, though, the Florida legislature had the constitutional authority to dispose of the state’s electoral votes.

So why was the U.S. Supreme Court’s opinion necessary? This looks like an internal Florida matter. Ah, but the Court has claimed the authority to apply the Fourteenth Amendment — “equal protection” and all that — to practically every aspect of American law, however minute and local. This may be an abuse of the Constitution, but it’s established practice, and liberals who have applauded it in the past were in no position to complain that the Court was usurping Florida’s reserved powers. Some old liberal chickens came home to roost in the Court’s snarled but fateful rulings of the past week.

It was Gore who started this crapshoot, but again, who can censure him for doing so? He was merely applying the logic of the law, if you can call it that. Bush had little choice but to do the same.

Still, the postelection contest came as an unpleasant surprise to most Americans, who expected the traditional election-night concession from the seeming loser. And there may be other surprises to come — especially if we “reform” the presidential process by replacing the Electoral College with a direct popular vote.

Suppose this race had been decided by the popular vote, not the Electoral College. Gore beat Bush by a mere 300,000 votes out of more than 100,000,000 cast. Or did he? If Bush had chosen to contest the result, the ensuing mess would have dwarfed the month-long ordeal-by-litigation we have just witnessed.

After all, Gore’s margin of victory in the popular vote — less than a third of 1 per cent — was, in proportion to the number cast, nearly as small as Bush’s margin in Florida. Certainly it’s conceivable that more than 300,000 of Gore’s nationwide vote was invalid. Human error might have tipped the balance. So might vote fraud, a Democratic tradition in the party’s big-city strongholds. If illegal immigrants, convicted felons, and other ineligibles were subtracted, Gore might well have lost the national popular vote.

Bush, if he had decided to fight to the bitter end, might have demanded a nationwide recount. The kind of wrangling we saw in a few Florida counties might have erupted in precincts from coast to coast — especially on the coasts themselves, in the chaotic cities where Gore got a wildly disproportionate share of his support.

Just multiply the uproar of the last month by 50, and you get some idea. The Florida mess was a freak that will almost certainly never be repeated: a close contest for electoral votes came down to a single state that was even more closely divided than the rest of the country.

But a very close national popular vote wouldn’t be a freak: it has happened several times in American history. It may well happen again, and again, and again. And the more meaningless an apparent winner’s margin of victory, the more bitter the recount war is bound to be.

Maybe we’re better off with the system that produced the Florida morass.

Joseph Sobran

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