As I write, the extraordinary 2000 presidential election remains undecided, because it remains uncertain which candidate will receive Florida’s twenty-five electoral votes. By the time this issue is published, the overseas ballots, the legal battles over manual recounts, or both, may finally have given Gore the presidency, or he may have conceded the presidency to Bush. Or the election may still be undecided, because recounts are continuing in Florida, or have been demanded in other states, or because lawsuits challenging the Florida electoral process, some of which have already been filed, are still pending. In any case, however, the election has raised a great number of new and perplexing legal and political issues, and it is important to confront these, for the future, whether or not the presidency still hinges on how they are decided.
Legitimacy is the issue. When an election is so close, and there are serious grounds for suspicion of inaccuracy in the count, how can officials decide who won in a way that the public should and would see as legitimate? It appears that Gore won the popular vote—according to the most recent reports, he received more votes across the country than Bush did. That fact has in itself no legal significance, of course, but neither does it have much moral significance. Which eligible voters actually voted—in fact approximately only 52 percent of them did—and for whom depended on a host of arbitrary factors or accidents. If the election had been held a day later or earlier, if the weather had been better in one place or worse in another, or if any number of other decisions or chance facts had been different, the popular vote would also have been different, and perhaps different enough to change who “won” it. There is much to be said against the Electoral College system—it gives individual voters in small states consistently more impact in presidential elections than those in large states, for example—but the fact that it permits the winner of the popular vote in a very close election to lose in the Electoral College is not one of them.
It is of central importance to the issue of legitimacy, however, whether more Florida voters actually intended to vote for Gore than for Bush, so that, if the Electoral College process had worked as it should, Gore would have won the state’s electoral votes and the presidency. The system did not work because the ballot in Palm Beach County was confusing, and many voters—perhaps more than twenty thousand—who intended to vote for Gore actually voted for Pat Buchanan or voted for two candidates and therefore found their ballots ignored. Nor would the system have worked if Gore finally wins because there was a manual recount only in heavily Democratic counties rather than in the whole state. Katherine Harris, the Florida secretary of state and co-chairman of the Bush campaign in Florida, has declared that no manual recounts submitted after November 14 will be counted. It is unclear as I…
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