Tuesday, October 26, 2004
THE CONSEQUENCES OF BUSH V. GORE
By Tweed
I'm not changing my election prediction, though I would tweek some of it as time goes on. I believe that massive voter turn out, the majority of which favors Kerry, is the most likely of a great number of possible election outcomes.
But while my election predictions are famously accurate (I missed only Oregon and Florida (arguably) for the 2000 election, and accurately predicted Bobby Courmier's election to student body president in 8th grade), I am not confident that my prediction is likely, in the sense that there is a greater than 50% chance of its occurence.
Stockton can attest to my long held belief that this election will result in massive litigation. There is a 99% chance of this occuring, I think. Legions of lawyers are already positioned in battleground and non-battleground states for post election litigation. Lawsuits have already been filed, criminal investigations have commenced and the facts that will likely result in such suits and criminal charges are ocurring.
But what will that mean?
Well, in my rosey scenario, probably not much with respect to a Kerry victory. Kerry's electoral victory will be so great that even close results in multiple states is unlikely to unhinge the election. No guarantee here, but if Kerry carries Florida by 100,000 votes, it probably won't matter.
But in a close race, the answer is too difficult to determine. What happens if Kerry and Bush win Ohio, Wisconsin, Florida, Nevada, Iowa, Colorado, Minnesota and New Mexico by razor thin margins? This is, according to many pundits and polls, a likely result. It doesn't take a crystal ball and psychic ability to do the electoral math to determine, for Bush or Kerry, which elections need to be challenged.
May it Please the Court: I Win.
As I mentioned, lawyers are already gearing up for the election - and not all of them preparing for post-election action. Just as there are two major party candidates, there are two major party positions when it comes to voting: Democrats want to see as many people as possible vote; and Republicans want to see as few people as possible vote. This battle will be waged before (already started) and on election day, as Republicans challenge voters as they try to vote, and Democrats try to get people past the Republican watchdogs.
On election day, expect madness and chaos across the country. Republican efforts to ensure that only elligible voters vote will look an awful lot like the application of Jim Crow laws. Already, they are attempting to move polling stations and make certain that too few stations to handle the high voter turnout are set up in democratic strongholds. You can imagine how well that will go over. Election day fun will include voter intimidation on a scale I always thought unimaginable in post 70s America.
Don't Forget Your Secret Passcode
The consequence? Election results postponed until well after the day after election day. It is distinctly possible that close to 100 electoral votes will be up for grabs after the election as accusations of vote fraud fly. And don't be confused here: I'm not talking about a legal battle to determine the mechanism for recounting a states vote; I'm talking about accusations of criminal conduct on the part of state political parties, government officials, special interest groups and the surrogates of the major party candidates.
This will jeapordize the election. In mid-December the electoral votes are cast. If a state cannot determine the winner of the election, how can those votes be cast? According to Bush v. Gore (which the justices declared to be non-binding authority), the Florida state legislature intended that Florida's votes should be counted in mid-December, regardless of questions concerning the legitimacy of the count, and therefore, disputes be damned, the "official" result, regardless of how accurate, is to be counted. If this principle holds true, some result will be reported in mid-December, and we will likely know the winner at that point.
"Oh, What the Hell; Give Half to Bush and Half to Kerry"
This would be bad for the country, in my opinion. If the election is as close as I've described, and the results are disputed, forcing the issue would rightly taint the results. Without a full airing of the grievances, how can we be confident of the results of a close election? And the opposition party (particularly if they're republicans) will relentlessly pursue this line in dealing with the new administration. This could have tragic consequences, particularly if Kerry comes out on top. Remember, republicans were willing to impeach a president for fibbing about getting BJs.
I can easily imagine Denny Hastert and Bill "Cat Killer" Frist declaring Kerry legislation DOA, refusing administration appointments and forcing an informal power sharing arrangement. I can see it, because republicans are true believers - it is in their political character to believe that they know best, despite what the constitution might say. Could Bush pull an Al Gore and call upon his backers to accept the legitimacy of a Kerry Presidency? Gore's speach (which you should go re-read) legitimized Bush's presidency for many people (including me). I don't think Bush has the moral authority to do it. I think it would take a combination of statements from Bush, Cheney, Frist, Delay, Ed Gillespie, Hastert and Ashcroft for that to work. I seriously doubt it would come to pass. There will be strong holdouts (the Delay wing), and others are too stupid (Bush, Frist), too mean (Cheney, Cheney and Cheney) or too filled with conviction (Ashcroft, Gillespie) to really do it. No matter what, there will be a fairly large, if not a majority, of republicans that believe Kerry is not the president - including many in the house and a couple in the senate.
This may have one positive outcome - the creation of the Republic of Texas. (Heck, I'll give them OK, LA, AL, MS, GA (sorry, Rusty, Jen and Steve), SC and even FL.)
If Bush ends up on top, I don't know what to expect. However, democrats are usually a little better with respect to respecting the rule of law when it comes to the internal operations of government. A speach by Kerry, like the one Al Gore made in finally conceding the presidency to Bush (again, which you should all go re-read), would work. But maybe not. I, for one, would never accept Bush's presidency as legitimate in such circumstances. I understand the need for moving on - but at the same time, the thought of another stolen election, to keep the presidency in the hands of this incompetant boob, is horrifying.
(Honestly, the thought that such a large percentage of Americans is willing to vote for this guy is horrifying enough. I must be living in an alternative universe, because I can't imagine how anybody thinks that this guy has done any better as president than he did at all of his other endeavors - Yale, getting into law school, business, managing a major league baseball team, speaking in complete sentences, etc. - is unbelievable. Seriously -unbelievable. (Which may be why I would have no problem letting the Republic of Texas come into existence.) And the worst part about all this mess is that this time Daddy Bush is not there to bail out his wayward son.)
I Can't Stand It
But is there another possibility - another path?
Yes there is.
The Supreme Court could take itself out of the process, let the suits proceed and recognize that a state that fails to get its results in on time is SOL. This could result in some states not getting their electoral vote count in on time; and no candidate receiving the required majority of electoral votes.
And there is a constitutional solution. The election would be thrown to the congress.
From a pro-Kerry standpoint, this is not optimal. Chances are Kerry would lose here. By my count, republicans hold a majority in 30 congressional delegations, with four (MN, MS, TX and WI) evenly split and 16 in the hands of the democrats. So Kerry loses, and maybe we again have a president who has lost the popular vote and has attained the presidency without a popular mandate.
Will These Presidential Electors Give Up Their "Right"
To Determine Who Will Be the Next President?
But such a result is supremely better than leaving it to Antonin Scalia and the Supremes. If our electoral process is so screwed up that we can't determine the results in time to determine a president, we will have highlighted the not-so-secret and festering problem with how elections are conducted in this country. Such a consequence could spark actual reform - reform of our electoral process and of the electoral college (speaking of which; does anyone have a degree from there?). Consider this: Clinton won in 1992 and 1996 without a majority of the popular vote - although he did win the plurality. Gore beat Bush in the popular vote. In short, no president since 1988 (well before any of my children were born) has received the mandate of a majority of the voters. (But who really knows given how they do things in Florida?)
In the face of an election marred by allegations of fraud and other abuses, we may never feel comfortable with the results. Recent polling suggests that we are entering this election with those doubts already well in hand. A congressionally determined president may not be the way we like it; but in the face of allegations of vote fraud and who knows whatever else, such a president would at least have the taint of legitimacy. The constitutional process will have worked.
But God help us if it happens.
|
By Tweed
I'm not changing my election prediction, though I would tweek some of it as time goes on. I believe that massive voter turn out, the majority of which favors Kerry, is the most likely of a great number of possible election outcomes.
But while my election predictions are famously accurate (I missed only Oregon and Florida (arguably) for the 2000 election, and accurately predicted Bobby Courmier's election to student body president in 8th grade), I am not confident that my prediction is likely, in the sense that there is a greater than 50% chance of its occurence.
Stockton can attest to my long held belief that this election will result in massive litigation. There is a 99% chance of this occuring, I think. Legions of lawyers are already positioned in battleground and non-battleground states for post election litigation. Lawsuits have already been filed, criminal investigations have commenced and the facts that will likely result in such suits and criminal charges are ocurring.
But what will that mean?
Well, in my rosey scenario, probably not much with respect to a Kerry victory. Kerry's electoral victory will be so great that even close results in multiple states is unlikely to unhinge the election. No guarantee here, but if Kerry carries Florida by 100,000 votes, it probably won't matter.
But in a close race, the answer is too difficult to determine. What happens if Kerry and Bush win Ohio, Wisconsin, Florida, Nevada, Iowa, Colorado, Minnesota and New Mexico by razor thin margins? This is, according to many pundits and polls, a likely result. It doesn't take a crystal ball and psychic ability to do the electoral math to determine, for Bush or Kerry, which elections need to be challenged.
May it Please the Court: I Win.
As I mentioned, lawyers are already gearing up for the election - and not all of them preparing for post-election action. Just as there are two major party candidates, there are two major party positions when it comes to voting: Democrats want to see as many people as possible vote; and Republicans want to see as few people as possible vote. This battle will be waged before (already started) and on election day, as Republicans challenge voters as they try to vote, and Democrats try to get people past the Republican watchdogs.
On election day, expect madness and chaos across the country. Republican efforts to ensure that only elligible voters vote will look an awful lot like the application of Jim Crow laws. Already, they are attempting to move polling stations and make certain that too few stations to handle the high voter turnout are set up in democratic strongholds. You can imagine how well that will go over. Election day fun will include voter intimidation on a scale I always thought unimaginable in post 70s America.
Don't Forget Your Secret Passcode
The consequence? Election results postponed until well after the day after election day. It is distinctly possible that close to 100 electoral votes will be up for grabs after the election as accusations of vote fraud fly. And don't be confused here: I'm not talking about a legal battle to determine the mechanism for recounting a states vote; I'm talking about accusations of criminal conduct on the part of state political parties, government officials, special interest groups and the surrogates of the major party candidates.
This will jeapordize the election. In mid-December the electoral votes are cast. If a state cannot determine the winner of the election, how can those votes be cast? According to Bush v. Gore (which the justices declared to be non-binding authority), the Florida state legislature intended that Florida's votes should be counted in mid-December, regardless of questions concerning the legitimacy of the count, and therefore, disputes be damned, the "official" result, regardless of how accurate, is to be counted. If this principle holds true, some result will be reported in mid-December, and we will likely know the winner at that point.
"Oh, What the Hell; Give Half to Bush and Half to Kerry"
This would be bad for the country, in my opinion. If the election is as close as I've described, and the results are disputed, forcing the issue would rightly taint the results. Without a full airing of the grievances, how can we be confident of the results of a close election? And the opposition party (particularly if they're republicans) will relentlessly pursue this line in dealing with the new administration. This could have tragic consequences, particularly if Kerry comes out on top. Remember, republicans were willing to impeach a president for fibbing about getting BJs.
I can easily imagine Denny Hastert and Bill "Cat Killer" Frist declaring Kerry legislation DOA, refusing administration appointments and forcing an informal power sharing arrangement. I can see it, because republicans are true believers - it is in their political character to believe that they know best, despite what the constitution might say. Could Bush pull an Al Gore and call upon his backers to accept the legitimacy of a Kerry Presidency? Gore's speach (which you should go re-read) legitimized Bush's presidency for many people (including me). I don't think Bush has the moral authority to do it. I think it would take a combination of statements from Bush, Cheney, Frist, Delay, Ed Gillespie, Hastert and Ashcroft for that to work. I seriously doubt it would come to pass. There will be strong holdouts (the Delay wing), and others are too stupid (Bush, Frist), too mean (Cheney, Cheney and Cheney) or too filled with conviction (Ashcroft, Gillespie) to really do it. No matter what, there will be a fairly large, if not a majority, of republicans that believe Kerry is not the president - including many in the house and a couple in the senate.
This may have one positive outcome - the creation of the Republic of Texas. (Heck, I'll give them OK, LA, AL, MS, GA (sorry, Rusty, Jen and Steve), SC and even FL.)
If Bush ends up on top, I don't know what to expect. However, democrats are usually a little better with respect to respecting the rule of law when it comes to the internal operations of government. A speach by Kerry, like the one Al Gore made in finally conceding the presidency to Bush (again, which you should all go re-read), would work. But maybe not. I, for one, would never accept Bush's presidency as legitimate in such circumstances. I understand the need for moving on - but at the same time, the thought of another stolen election, to keep the presidency in the hands of this incompetant boob, is horrifying.
(Honestly, the thought that such a large percentage of Americans is willing to vote for this guy is horrifying enough. I must be living in an alternative universe, because I can't imagine how anybody thinks that this guy has done any better as president than he did at all of his other endeavors - Yale, getting into law school, business, managing a major league baseball team, speaking in complete sentences, etc. - is unbelievable. Seriously -unbelievable. (Which may be why I would have no problem letting the Republic of Texas come into existence.) And the worst part about all this mess is that this time Daddy Bush is not there to bail out his wayward son.)
I Can't Stand It
But is there another possibility - another path?
Yes there is.
The Supreme Court could take itself out of the process, let the suits proceed and recognize that a state that fails to get its results in on time is SOL. This could result in some states not getting their electoral vote count in on time; and no candidate receiving the required majority of electoral votes.
And there is a constitutional solution. The election would be thrown to the congress.
From a pro-Kerry standpoint, this is not optimal. Chances are Kerry would lose here. By my count, republicans hold a majority in 30 congressional delegations, with four (MN, MS, TX and WI) evenly split and 16 in the hands of the democrats. So Kerry loses, and maybe we again have a president who has lost the popular vote and has attained the presidency without a popular mandate.
Will These Presidential Electors Give Up Their "Right"
To Determine Who Will Be the Next President?
But such a result is supremely better than leaving it to Antonin Scalia and the Supremes. If our electoral process is so screwed up that we can't determine the results in time to determine a president, we will have highlighted the not-so-secret and festering problem with how elections are conducted in this country. Such a consequence could spark actual reform - reform of our electoral process and of the electoral college (speaking of which; does anyone have a degree from there?). Consider this: Clinton won in 1992 and 1996 without a majority of the popular vote - although he did win the plurality. Gore beat Bush in the popular vote. In short, no president since 1988 (well before any of my children were born) has received the mandate of a majority of the voters. (But who really knows given how they do things in Florida?)
In the face of an election marred by allegations of fraud and other abuses, we may never feel comfortable with the results. Recent polling suggests that we are entering this election with those doubts already well in hand. A congressionally determined president may not be the way we like it; but in the face of allegations of vote fraud and who knows whatever else, such a president would at least have the taint of legitimacy. The constitutional process will have worked.
But God help us if it happens.
