Anatomy of a Constitutional Coup

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Anatomy of a Constitutional Coup
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Anatomy of a Constitutional Coup

Bruce Ackerman

It was a curious time for a crisis. An extraordinary boom had provided
the rich with fabulous wealth and America with full employment. The
disappearance of the Red menace gave the nation an effortless cultural
primacy. The Air Force had even established that wars could be won
without casualties. What was there to worry about? Certainly Al Gore
and George W. Bush weren't calling on Americans to ask any large
questions. Both pushed their ideologues of the Left and the Right off
the airwaves (at least during prime time). After one of the most
boring campaigns in history, Americans were sleepwalking their way to
the ballot-box - when crisis hit after it was supposed to be all over.

Call it a crisis of the written Constitution, caused by the enormous
historical gap that has opened up between the Constitution of 1787 and
the living Constitution of the 21st century. During the 35 days
following the election, the written and living Constitutions
interacted in unpredictable and awkward ways that challenged America's
commitments to democracy and the rule of law.

The challenge proved too great for the country's political and legal
elite. Succumbing to the crudest partisan temptations, the Republicans
managed to get their man into the White House, but at grave cost to
the nation's ideals and institutions. It will take a decade or more to
measure the long-term damage of this electoral crisis to the
Presidency and the Supreme Court - but especially in the case of the
Court, Bush v. Gore will cast a very long shadow.

According to the living Constitution, the American President is the
leading symbol of the nation, the bearer of a democratic mandate, the
engine of domestic change and international commitment. This
commanding office is largely a creation of the 20th century, the work
of leaders like Wilson, Roosevelt and Reagan. But it bears no
resemblance to the Presidency that the Founders wrote into the
Constitution. They were 18th-century gentlemen who lived in a world
without political parties or universal suffrage. They feared that
direct election to the Presidency would enable demagogues like Caesar
or Cromwell to destroy the republic. They sought to reassure the folks
back home that the President was not going to become another tyrant
like George III. He would instead be a dignified notable presiding
over a federation with sharply limited powers.

The Electoral College expresses this federalist vision. Each state
counts, not each voter. Populous Pennsylvania and tiny Delaware got
two electoral votes apiece to reflect the fact that, as equal states,
they are each represented by two senators. Pennsylvania wields more
votes in the College only because it also obtains an elector for each
of its seats in the House of Representatives, and these are awarded on
the basis of population. Thus a small state like Delaware has three
electoral votes (two senators, one representative) and big states like
Pennsylvania many more (two senators, many representatives), but the
formula still expresses a substantial bias towards states' rights.

The 1787 Philadelphia Convention expressed the same federalist
tendency when deciding who should vote for President. Suffrage
requirements were then highly controversial, and so the Convention
chose to sidestep the matter by delegating the franchise question to
each state's legislature. Indeed, the legislatures were even free to
name their state's electors without referring the matter to the larger
voting public, and many legislatures availed themselves of this
privilege during the early decades. The prevailing ideology regarded
political parties as dangerous, and it seemed risky to allow them to
engage in demagogic campaigns in support of their Presidential
favourites. Why not trust the legislature to select men of probity who
might wisely cast the state's electoral votes without populist
pandering?

These 18th-century ideas have been swept away by history, but the text
has remained basically intact. Today, as in 1787, the Constitution
penalises states with large populations; and each state selects
individual electors to cast ballots as if they were making independent
judgments. To emphasise the federalist nature of the choice yet
further, the electors still do not even travel to Washington DC. They
vote in their states, and then send their ballots to Congress for
counting.

This stately ritual has long since been reduced to shadow-play. The
rise of universal suffrage forced state legislatures to cede the
selection of electors to the voters, and the rise of political parties
eliminated the electors' claim to independence. As early as the 1830s,
each party nominated a partisan slate of electors, who pledged their
ballots to rival national candidates. The living Constitution had
created a system in which Americans think and act as if they choose
their President directly. Over the last sixty years, public opinion
polls have consistently shown that 60 per cent of Americans support
the abolition of the College.

The written Constitution is notoriously difficult to amend - requiring
two-thirds majorities in Congress and the assent of three-quarters of
the state legislatures. The resulting gap between the living and
written Constitutions frames the problems posed by the Bush
Presidency. Most obviously, George W. Bush's victory is entirely a
product of the federalist bias inherited from 1787. Al Gore won the
popular vote by more than 500,000, carrying California, Illinois, New
York and Pennsylvania. But he won only 20 states (plus the District of
Columbia, which votes like a state for this purpose). In contrast,
Bush won 30 states, even though he managed to carry only Florida and
Texas among the major prizes. Bush's sweep of the small states netted
him 18 extra votes in the Electoral College - rather a lot,
considering that he beat Gore by only four.

This will inevitably make him a weak President, but not an
illegitimate one - at least not if we assume that his win in Florida
was legitimate. In turning to this question, keep one basic point in
mind: the Federal Constitution imposes few constraints on the way each
state structures its own form of government. This means that the
practical operation of the Electoral College depends on how Florida
chooses to organise its own voting process.

Florida's Constitution shares three characteristics with many other
states. The first is decentralisation. Local - not state - government
wields vast decision-making power on a broad front. In only eight
states, for example, do all citizens use the same election machines.
Elsewhere, the selection of equipment is delegated to local election
boards. While the minority party is represented on these boards, the
local majority typically calls the tune.

Not that these boards can act arbitrarily. They are constrained by
authorities operating at state level. This leads us to a second
similarity between Florida's Constitution and that of other states:
its populist cast. Voters not only choose the governor. They also
insist on electing important cabinet officers. The appointment of the
Secretary of State, who supervises elections, is not always considered
important enough to require popular choice. Florida's Secretary, for
example, will be appointed, not elected, as of 2003. But when the
crisis hit, the incumbent was a minor politician aspiring to better
things, Katherine Harris.

The state judiciary is the third element of this living Constitution.
After each election, disappointed candidates seek judicial relief from
arbitrary decisions by local and state administrative bodies. Broadly
speaking, state supreme courts are concerned not only with blatant
electoral fraud but also with many subtler forms of arbitrariness. And
their judgments have typically pushed the electoral process towards
tolerable - if not admirable - results.

To be sure, radical decentralisation means that the poorest counties
choose the cheapest, most error-prone methods of counting the vote.
And the dangers of partisan appointment to election boards are also
real. Nevertheless, local boards often consist of county judges and
other notables who are generally unwilling to throw away hard-earned
reputations for civic probity in order to steal an election for a
single crony. The same is true of the Secretary of State. Getting
hauled into court on charges of voting fraud is very bad for a budding
politician's career. Voters will take notice as newspaper headlines
drag the Secretary's name through the mud.

Alas, the normal caution was swept aside by the Electoral College.
Despite Gore's national lead of half a million votes, Florida's 25
Electoral College votes turned on a few hundred ballots. Suddenly, it
made sense for both sides to go for broke. This point was made most
explosively in Miami, where more than ten thousand ballots had been
rejected by the city's pathetically inadequate voting technology. As
the election board prepared for a manual recount, a Republican mob
successfully intimidated them into calling it quits. These
unforgettable scenes, beamed across the world, will darken the image
of American democracy for a long time to come.

There is more to these television pictures than meets the eye. Who
funded and organised the Republican mob? Newspaper speculation is
rife, pointing to one or another national leader of the Hard Right. No
less tantalising: why was Gore so ineffective in stiffening the
election board's resolve? Miami is a Democratic city, and its leading
politicians could have exerted great influence. Newspaper accounts
suggest that the Elián Gonzalez affair was to blame. When the Clinton
Administration seized the child, it so alienated local politicians
that they were unwilling to help Gore in his hour of need.

The Republicans were more fortunate in their choice of party warriors.
Secretary of State Harris repeatedly fell on her sword for the
Republican cause before a worldwide television audience. As
co-chairman of Bush's campaign in the state, she was suffering from an
obvious conflict of interest. Without question, she should have
disqualified herself, leaving legal rulings to career officials in the
Department of State. But the brazen Harris swept such inhibitions
aside, and single-mindedly proceeded to block, delay or nullify any
manual recount that threatened Bush's diminishing lead.

It is a mistake to linger on the role of the well-placed mob or the
well-dressed flunky. Florida's final choice would be determined by
powers much higher up the totem pole. Following standard procedures,
the Florida Supreme Court was the ultimate decision-maker. Throughout
the crisis, it had one overriding aim: to ensure that all challenged
votes were counted. Nothing remarkable here: Florida's Constitution
emphasises the sanctity of the vote, and its laws expressly allow for
manual recounts.

At the same time its election code is the work of many decades, and
contains ambiguities and inconsistencies when read as a whole. This is
typical in the law, and the Court was on firm ground in harmonising
different provisions by reference to the fundamental purpose of an
election law in a democracy. If its decisions had not involved the
Presidency but some lesser office, the Court would have won a minor
place of honour in the annals of American law. All serious scholars
recognise that the ramshackle American election system would collapse
if state courts failed to demonstrate an ongoing commitment to basic
democratic principles.

Once again, however, the forces unleashed by the Electoral College
proved overwhelming. The Court's political complexion provided an
excuse to discredit its decisions. All seven members were Democrats
appointed by previous Democratic governors (with the partial exception
of one appointment in which Governor Jeb Bush participated). This
allowed Republicans to denounce the judges as partisans who were
trying to steal the election.

This was to be expected, but then there was a real surprise. During
the early stages of the controversy, Jeb Bush had retired from public
view, allowing the egregious Harris to take the political heat. As
Florida's courts began to threaten his brother's victory, he
re-emerged from the shadows to endorse a breathtaking proposal: if the
judges insisted on counting the votes rejected by machines, why not
take the Presidential decision out of the hands of the voters?

Bush's weapon was the written Constitution. The 1787 text does not
guarantee the right to vote in Presidential elections: it simply
authorises each state legislature to determine how its electors should
be chosen. Bush called on his fellow Republicans to act
'courageously', and return to the early days of the Republic when
legislatures ignored the voters and appointed electors on their own
initiative. Under Bush's plan, these legislatively appointed electors
could then vote for his brother even if the courts found that the
popular vote had gone to Gore. The Republican leaders of the Florida
legislature called a special session to do their Governor's bidding,
and so, when the crisis reached its climax, the Florida House had
already named a Bush slate. With the Bush family at its head, the
Republican Party was making a brazen effort to seize the Presidency by
assaulting the state courts and wresting power from the voters - all
in the name of the written Constitution.

The only thing that stopped this Constitutional coup was the United
States Supreme Court. Just as the Florida Senate was preparing to
endorse the Bush slate, the Court intervened to stop the Florida
recount, and establish George Bush as the next President. With its
mission accomplished by higher powers, Florida's Senate quickly
adjourned in the hope that the attempted Bush coup would be quickly
forgotten.

This would be a mistake, however: not only because of what it tells us
about the Bushes but because of what it tells us about the American
Constitution. Suppose that the United States Supreme Court had stayed
on the sidelines, and allowed Florida to determine its own electoral
destiny. In this scenario, the state could well have sent sets of
votes from two different groups of electors to Washington: one slate
certifying the judicial conclusion that Al Gore had won the election
of 7 November, the other certifying the legislative decision in favour
of Bush on 13 December. How would Congress have resolved the conflict
when it convened on 5 January to count the electoral votes?

With difficulty, but not without precedent. In 1876 the country was
still experiencing the aftershocks of civil war, and elections in
three Southern states, including Florida, were so chaotic that rival
governments in each of these states submitted rival electoral slates
to Congress. In response, Congress appointed a special bipartisan
commission, consisting of five congressmen, five senators and five
justices of the Supreme Court. After considering the rival slates, the
Commission awarded the Presidency to the Republican candidate,
Rutherford B. Hayes. Then, in 1887, Congress passed a statute ensuring
that things would be easier the next time. This statute would have
guided Congress, as it chose between the Gore slate picked by
Florida's voters and the Bush slate picked by its legislature. But
there would have been a problem, for the statute requires the two
Houses to agree on a single slate, and Republicans controlled the
House, while Democrats controlled the Senate.

This split might not have entailed a deadlock. Both Houses were
controlled by very narrow margins, and the Bush coup in Florida would
have provoked a great argument across the nation. The ensuing debate
might have forced a few Republican moderates to vote for Gore. After
all, it was not going to be easy to explain to outraged constituents
why they had insisted on Bush after he had lost both the popular vote
by 500,000 and the Florida vote by a hair - merely because his brother
had managed to ram a piece of paper through the Florida legislature.

Suppose, however, that the Republican majority in the House had stood
firm. The 1887 statute is drafted too imprecisely to tell us what
should have happened at this point, and some form of creative
compromise would have been required. My best guess is that Congress
would have followed precedent and created an electoral commission with
five senators, five congressmen and five Supreme Court justices. The
five judges might well have cast the deciding votes, but they would
have been acting in a plainly political, rather than a judicial,
capacity, and their decision would not have tainted the future
operation of the Court.

This is, of course, precisely what didn't happen. Rather than stand on
the sidelines, the Supreme Court flung itself into the political
vortex. Curiously, the Court denies that it had any choice in the
matter, asserting that it was 'our unsought responsibility' to resolve
the case. Every American lawyer knows otherwise. Like thousands of
cases each year, Bush v. Gore appeared on the Court's discretionary
docket. Since the Court accepts only 80 of these requests for a
hearing, it was aggressively displacing Congress in its zeal to decide
the election.

Judicial activism is not necessarily a vice in America - so long as it
is thoughtfully conceived and carefully executed. In the Court's
famous interventions in the past, the justices have made heroic
efforts to achieve unanimity, or something close to it, before rushing
to the centre of the political stage. Brown v. Board of Education, as
well as Marbury v. Madison, was unanimous, and even Roe v. Wade was
initially decided by a vote of seven to two. But the Court awarded the
Presidency to Bush by a five to four vote, with the dissenters filing
bitter public protests. Nor was there much time for deliberation. The
Court typically labours for many months before handing down a
significant judgment: Bush v. Gore was issued 34 hours after the oral
argument. This is not a recipe for clear legal thinking.

There is only one serious defence for the Court's precipitate leap
into Presidential politics. In my hypothetical sketch the House and
Senate come to a commonsense solution, either picking the Gore slate
or following the precedent of a bipartisan electoral commission. But
pessimists might foresee hordes of right and left-wing extremists
marching on Washington, Congressional elites deadlocked, and the
situation spinning out of control. (Had the impasse continued beyond
the end of Clinton's term, existing law would have authorised the
Speaker of the House, Dennis Hastert, to serve as acting President
until Bush or Gore was finally selected.) If one is haunted by the
spectre of acute crisis, one can view the justices' intervention more
charitably. However much the Court may have hurt itself, did it not
save the larger Constitutional structure from greater damage?

Perhaps. But even pessimists should question the way the Court chose
to intervene. The more democratic solution would have been not to stop
the Florida courts from counting the votes, but to stop the Bush
brothers from creating Constitutional chaos by submitting a second
slate of legislatively selected electors. The Court could have taken
care of all the serious difficulties by enjoining Jeb Bush not to send
this slate to Congress. With the legislative slate eliminated by
judicial decree, the legal situation would have been dramatically
clarified. Like every other state, Florida would then have submitted a
single slate of electors - pledged to Bush or Gore, depending on the
outcome of the final vote count. Under the statute of 1887, this slate
must be accepted by Congress unless both Houses vote to reject it. But
while Republicans in the House might have been tempted to reject a
Gore victory, the Democrats in the Senate would never have gone along
with it; and vice versa. In short, if judicial intervention was
justified at all, the Supreme Court chose the wrong target. The root
of the problem was the Bush Constitutional coup, not the judicial
demand that every vote be counted.

There would have been another advantage to this solution. The Court
could have written an opinion that made legal sense. The
Constitutional text gives state legislatures the power to determine
'the manner' in which electors are selected, but a second provision
gives Congress the power to establish a uniform day for choosing
electors throughout the United States. Florida's legislature violated
this when it sought to choose its own slate of electors in December, a
month after election day. It is one thing for a legislature to
determine the 'manner' of election: quite another for it to authorise
popular election by the voters of Florida on 7 November and then try
to change the result by legislative fiat after the fact. In short,
Supreme Court action against the Bush coup was not only commended by
democratic principle but by the Constitutional text.

The actual opinion of the Court in Bush v. Gore is a shabby affair.
The majority's conclusion does not follow from its premises. Most
important, the majority does not challenge the Florida Court's demand
for a manual recount. It simply questions the standard under which the
recount was proceeding. The Florida Court had instructed officials to
inspect each ballot to determine each voter's intention. In the
Supreme Court's view, this allowed for too much arbitrariness in the
evaluation of individual ballots. In order to pass muster under the
Equal Protection Clause, the Court held that more concrete criteria
for ballot evaluation must be judicially elaborated before the recount
could proceed.

I do not challenge this doctrinal conclusion. But it does not remotely
justify the next - and crucial - move in the Court's argument. Having
emphasised the need for concrete standards, the obvious next step was
to send the case back to Florida to allow the state courts to satisfy
Federal requirements and proceed with the recount. This is precisely
what the Supreme Court refused to do. Instead, it took upon itself the
task of interpreting Florida law and found that Florida no longer
wished to proceed with the recount. According to the majority, Florida
law required that all disputes be resolved by 12 December and not a
moment later. Since the Court handed down its decision in Washington
at 10 p.m. on 12 December, there was - alas - no time left to do
anything but declare George Bush the winner.

Nothing in Florida law remotely justified this remarkable act of
interpretation. No state statute says anything whatsoever about 12
December. Nor did the Florida Supreme Court make a fetish of this
date. In a brief discussion, it did take passing notice of a Federal
law that gives states a special privilege if they manage to file an
undisputed slate of electors by the 12th. Under this provision,
Congress guarantees that it will treat such uncontested filings as
absolutely binding when it counts electoral votes.

This statute does not, however, disqualify late returns. This year,
for example, at least four states - California, Iowa, Maryland and
Pennsylvania - submitted their slates of electors after the Supreme
Court's magical deadline. Their casual attitude is easily explained.
As we have seen, late filings cannot be rejected unless both Houses
agree, and this is unimaginable when the House is controlled by
Republicans and the Senate by Democrats. Moreover, Congress has been
especially liberal when manual recounts have revealed that an earlier
return was erroneous. In 1960, for example, Congress accepted a change
made by Hawaii, based on a recount, as late as 4 January.

The Florida courts, in short, had more than three weeks to complete
their recount when the Supreme Court cut them off. And the Florida
Court's entire conduct suggests that it was eager to continue. In
asserting otherwise, the majority of the Supreme Court was engaging in
an act of 'interpretation' without any basis in law - as the four
dissenters took pains to note.

Suppose I had been reporting on the recent election of Vicente Fox as
President of Mexico. I would have described how a mob of Fox's
partisans stopped the vote count in Mexico City, how Fox's campaign
chairman used her authority as chief elections officer to prevent the
count from continuing, how Fox's brother exercised his position as
governor to take the Presidential election out of the hands of the
voters, how the Supreme Court intervened to crush, without any legal
ground, the last hope for a complete count. Would we be celebrating
the election of President Fox as the dawn of a new democratic day in
Mexico?

Bruce Ackerman is Sterling Professor of Law and Political Science at
Yale and the author of We the People. He is a member of the American
Law Institute and the American Academy of Arts and Sciences.