Restless Giant: The United States From Watergate to Bush v. Gore (67 page)

Many Bush supporters, delighted with the Court’s position, denounced the Florida Supreme Court, which they blasted as a partisan agent of Gore. “Not in living memory,”
New York Times
columnist William Safire exclaimed, “have Americans seen such judicial chutzpah. Our political process was almost subverted by a runaway court.” Like many other conservatives, Safire emphasized that Article II of the Constitution gave state legislatures the authority to appoint presidential electors. If the U.S. Supreme Court had not been willing to “take the case and take the heat,” he added, the “internecine mud-wrestling would have gone on for at least another month.”

Safire also pointed out that Republicans in the incoming House of Representatives would enjoy an edge in a majority of the state delegations (twenty-nine of fifty), which were the groups that the Constitution charged with resolving disputes of this sort. If legal battling persisted, causing two slates of Florida electors to be considered when Congress met in early January, the Republican-dominated House would choose Bush. The Court, Safire concluded, took a bullet in order to stop a further ratcheting up of ill feeling that would have served no useful purpose.
⁶⁷

Gore supporters, however, rejected this interpretation of Article II, which they said did not give state legislatures such sweeping authority over state laws and constitutional directive. They also deplored the Court’s reliance on the equal protection clause. They were especially outraged by what they charged was the strategy of delay that Baker had masterminded. They saw nothing but partisan motives behind the Court’s intervention, which they said had opportunistically relied on a December 12 deadline that neither Florida law nor the Florida court had called for. The Court’s conservatives, they charged, had short-circuited the legal process in order to give Bush, for whom a minority of Americans had voted, an undemocratic victory. A prominent Los Angeles prosecutor and deputy district attorney, Vincent Bugliosi, erupted: “The stark reality . . . is that the institution Americans trust the most to protect its freedoms and principles committed one of the biggest and most serious crimes this nation has ever seen—pure and simple, the theft of the presidency. And by definition, the perpetrators of this crime
have
to be denominated criminals.”
⁶⁸

Whether Gore had actually taken Florida remains uncertain, especially because hundreds of ballots disappeared between election day in 2000 and reviews of the voting that attempted in 2001 to answer this question. A consortium of major news organizations that undertook a comprehensive review in 2001 of the Florida battle reached varying conclusions depending on which ballots were recounted and on which standards were used to evaluate them. They did not resolve the controversy.
⁶⁹
One thing, however, did seem fairly clear: More Floridians, including most of those who had been confused by the butterfly ballot in Palm Beach County, had
intended
to vote for Gore than for Bush.
⁷⁰
Another fact was obvious: No matter the exact tallies in Florida, Gore had triumphed nationally in the popular vote—by a margin (537,179) that was more than four times as large as Kennedy’s (118,574) had been in 1960.

Subsequent analyses of the voting in 2000 suggested that if Ralph Nader had not been in the race, Gore would have won the election, and without any legal hassles. In Florida, Nader received 97,488 votes, far more than Bush’s certified margin of 537. Later reviews concluded that if Nader’s name had not been on the ballot in Florida, 45 percent of people who voted for him there would have opted for Gore, as opposed to only 27 percent who would have chosen Bush. (The remaining 28 percent would not have voted.) Studies of the election added that if Nader had not run, Gore would very likely have taken New Hampshire’s four electoral votes—and therefore the election, no matter what happened in Florida. Gore had assumed that he could not win New Hampshire and slighted it, especially toward the end of the campaign. In November, Nader received 22,138 of the 569,081 votes cast in the Granite State, considerably more than Bush’s narrow margin of 7,211.
⁷¹

Other observers deplored the numerous flaws in America’s electoral procedures. Many of these criticisms, of course, targeted the anachronism of the electoral college, which not for the first time in United States history had played a key role in depriving the top vote-getter of victory.
⁷²
A related focus of complaint was the winner-take-all system that states employed to determine their allocations of electoral votes.
⁷³
In part for this reason, candidates who expected to win or lose in relatively non-competitive states (that is, most states) scarcely bothered to campaign in them. Bush, for instance, virtually ignored California (fifty-four electoral votes) and New York (thirty-three electoral votes), which Gore was certain to carry, and Texas (thirty-two electoral votes), where he was sure to win. It was equally obvious that registration and voting procedures, which were established by state and local officials, varied widely throughout the country and that in many states, including of course Florida, they were sadly deficient.

After the election, however, little changed. Many people agitated for reform or abolition of the electoral college, but opponents of change claimed that the college safeguarded states’ rights and the principle of federalism. Political leaders in small states, as at most times in the past, jealously protected what they perceived as their advantages in the college, thereby rendering unattainable efforts for approval of a constitutional amendment to abolish or reform it. Defenders of the electoral college also asserted that if it were scrapped, minor-party candidates would be more likely to jump into a presidential race. Popular candidates of this sort would surely pick up a substantial number of votes, perhaps leaving the top vote-getter with only a small plurality of the overall turnout. Such a “winner” would therefore become president without anything like a popular mandate. Other observers maintained that the electoral college, by discouraging post-election disputes in all but very closely contested states—few in number—had helped in the past to minimize litigation. Absent the college, they said, a national election featuring a close popular vote might prompt an eruption of legal battles wherever it seemed that litigation might help one candidate or another to pick up a few extra votes. Worst-case scenarios, emphasizing the nation’s widely varying and careless electoral procedures, imagined thousands of lawsuits that would drag on for months or more.

Overhauling winner-take-all allocations of electoral votes did not require a constitutional amendment, but political leaders in the states, eager to deliver 100 percent of their electoral votes to the candidate of their own party, showed little disposition to change their ways. In the presidential election of 2004, as in 2000, the presidential candidates—Bush and Senator John Kerry of Massachusetts—therefore focused their attention on a small number (no more than eighteen in all) of so-called swing or battleground states where the results were expected to be close, and virtually ignored the rest.

Satisfactory repair of flawed electoral procedures and machinery was technologically complicated and expensive. Wide variations persisted after 2000, preventing anything close to national uniformity. Despite halfhearted congressional efforts that resulted in a Help America Vote Act in 2002, reforms remained to be accomplished. During and after the hotly contested election of 2004, a host of headlines highlighted electoral problems and irregularities.

A
S
B
USH PREPARED TO TAKE OFFICE IN
J
ANUARY 2001
, three political consequences of the election were clear. The first was that Republicans had sailed out of the doldrums that had stranded them after Watergate in 1974. At that time only 18 percent of American voters had identified as Republican. In 1975, a low point for the GOP, Democrats controlled thirty-six state houses and thirty-seven state legislatures.
⁷⁴
Thanks to the political skills of Ronald Reagan, to the rise of the Religious Right, and to defections of white working-class and Catholic voters to the GOP, conservatives gradually forced liberals to the defensive. Republicans, though losing their majority in the Senate in 1987 and the presidency in 1993, swept to victory in 1994 and to control in 1995 of both houses of Congress for the first time since 1955. By 2001, the GOP enjoyed dominance in a majority of states.
⁷⁵
It had control of the White House as well as of both houses of Congress—again for the first time since 1955. Democrats, meanwhile, continued to fight among themselves. Many were furious at Gore, blasting him as a bungler whose terrible campaign opened the door for Bush.

The second consequence of the election, however, was that Republicans still did not command the political power that Democrats had enjoyed for much of the time between 1933 and 1968 and that they had clung to in Congress during most years before 1995. By 2000, roughly as many Americans called themselves Democrats as Republicans.
⁷⁶
And Democrats were hardly feeble on Capitol Hill in 2001. In the 2000 election, they had held their own in races for the House, leaving the GOP with a precarious ten-person edge, 221 to 211. Democrats gained five seats in the Senate, tying Republicans, 50 to 50. In case of a deadlock, Vice President Cheney would have to intervene.
⁷⁷

Finally, little about the mood of party activists in January 2001 promised political harmony in the near future. The majority of people, to be sure, continued to cluster near the political center. Americans abided by the rule of law, even when it was delivered by a five-to-four majority of a politically divided Supreme Court.
⁷⁸
Polls suggested in early 2001 that public esteem for the Court, which had normally been high in American history, remained strong.
⁷⁹
But the election had inflamed the passions of partisans. Politically engaged Democrats were angry to discover that the incoming president, loading his Cabinet with Republicans, seemed to have jettisoned his campaign pledges about cooperating with the opposition. Was he going to become a “divider,” not a “uniter”? Many Democratic senators and representatives, perceiving Bush to be an illegitimate, “unelected president,” returned for his inaugural on January 20, 2001, in a surly and uncompromising mood.

So, too, did a group of demonstrators on inauguration day. Almost twenty-seven years earlier, when Nixon had finally fallen on his sword, signs across the street from the White House had borne messages of relief:
DING DONG, THE WITCH IS DEAD; SEE DICK RUN; RUN DICK RUN
.
⁸⁰
On January 20, 2001, a cold and rainy day, some of the placards that greeted the new Republican president were as harsh as the weather:
HAIL TO THE THIEF
;
ELECTION FOR SALE; THE PEOPLE HAVE SPOKEN—ALL FIVE OF THEM
.

C
LEVER SIGNS
. It was nonetheless a fact that on that damp and chilly occasion in January 2001, as had generally been the case in the years since 1974, the majority of the American people were less partisan—less attentive to political fighting—than were the protestors, the politicians, or the interest groups with causes to defend. Or than the media, which then, as so often since Watergate, focused avidly on cultural and political controversies. Conflicts such as these, inevitable in a dynamic and diverse society such as the United States, surely persisted—and continued to thrive thereafter, especially after Bush took the nation to war in Iraq in 2003. But most Americans, including the nearly 45 percent of eligible voters who had not turned out in 2000, were not greatly wrapped up in political partisanship in 2001, great though this had been immediately after the election. The nation’s durable political and legal institutions—the presidency, Congress, the courts, the Bill of Rights—also continued to command widespread popular allegiance, thereby keeping partisan warfare within manageable bounds.

Like most people most of the time, the majority of Americans tended to concern themselves in early 2001 mainly with personal matters: their families, friends, neighborhoods, and jobs. Many of these matters inevitably produced anxieties: A predominant mood of Americans, to the extent that it could be briefly described, continued to be restless. In a culture where most citizens still imagined the possibility of the American Dream of upward social mobility, many people continued to have high expectations, some of which were as elusive as ever.

But palpable complacency and self-congratulation helped to moderate popular restlessness in early 2001. Cautiously optimistic feelings of this sort were understandable, for a number of encouraging developments since the 1970s had helped to lift them. While many older Americans still hankered for the Good Old Days, significant features of those supposedly halcyon times—the 1940s, 1950s, and early 1960s—had been harsh, especially for racial and ethnic minorities, Catholics and Jews, the handicapped, senior citizens, the majority of women, and gay people. Owing to the spread of tolerance and rights-consciousness since the 1960s, these and other Americans in 2001 enjoyed greater civil rights, civil liberties, entitlements, protections, and freedoms—including expanded choice and privacy—than they had in the past. Because younger generations of Americans since the 1960s had most often led the forward movement for rights and tolerance, it seemed likely that the changes wrought by the rights revolution of late twentieth-century America would endure.