US: A Sophisticated Banana Republic

The US is not on par with banana republics where the winner of a presidential election is known long before election day. But the US Supreme Court has just said in an amazing verdict on the Bush-Gore dispute that Americans have no fundamental right to vote in a presidential election. In that case, the US looks like and smells like a banana, no matter howsophisticated its procedures.

In India, the rights of the voter would be considered paramount by all courts. The US Supreme Court has different ideas. Its judgement says, “The individual citizen has no Federal Constitutional right to vote for electors for the President of the US unless and until the state legislature chooses a statewide election as the means to implement its power to appoint the members of the Electoral College (US Constitution, Art.II, Sec. I).”

Two centuries ago, the states did not want a direct election of the USPresident, and opted for an indirect election by an electoral college. Each state got a quota of electors based on population, and the state legislature was free to choose these electors. However, all state legislatures later passed laws providing for a direct vote by citizens for a slate of electors nominated by each presidential candidate.

The Supreme Court goes on, “When the state vests power to vote for Presidential Electors in the people, the right to vote as the legislature has prescribed is fundamental”. That sounds reassuring. Yet the court then asserts that state legislatures have merely given a franchise to citizens to vote, not a fundamental right. “The state, of course, after granting thefranchise in the special context of Art. II, can take back the power to appoint presidential electors”. So, Americans have no fundamental right to vote in a presidential election, and this is merely a magnanimous gift from state legislatures which can be revoked at will! This might have passed muster in 1820, but is an outrageous anachronism in the 21st century.

Now, you might think that this amounts to fussing about a theoretical proposition instead of addressing the nitty-gritty of the US election. Bush focussed on stopping all manual recounts. Gore focussed on having manual recounts in three counties which were strongly Democratic. Much argument revolved on whether it was permissible for counties to use different standards in counting votes. Palm Beach in particular was castigated by the judges for starting with one standard for counting chads, changing it mid-way, and finally abandoning any attempt at a uniform standard. This was the key reason why the Supreme Court stopped the recount as flawed. And, it said regretfully that, since a fair recount with uniform standards would not be possible by December 12, no recount at all was feasible.

Such a verdict would be unthinkable in India. Neither the Election Commission nor courts would ever give some state deadline priority over the right of citizens to choose their rulers. Florida has a law requiring electors to be chosen by December 12, well before the electoral college meets on December 18. Can such a deadline really take priority over the right of citizens to a fair vote count?

The supreme court was split on this issue, but a 5-4 majority said yes. On the ground of insufficient time to conduct a fair recount, the earlier machine count – which all agreed had flaws – was allowed to stand.

This amazing outcome was rendered possible by one key notion: That citizens have no fundamental right to vote in a presidential election. This notion enabled the Supreme Court to give state laws and deadlines priority over the voting rights of citizens.

This was not the only can of worms. Miami-Dade county refused to countundervotes (incompletely punched ballots) as ordered by the Florida courts on the ground that it could not do so within four days. Imagine, not being able to count a mere 10,000 votes in four days! The real reason, according to local journalists, was that the Miami Mayor wanted to please Florida Governor Jeb Bush, brother of the new President.

Even worse was the 5-4 split in the Supreme Court along party lines. The Republican-leaning majority declared that if undervotes could not be counted with perfection, they could not be counted at all. This defied precedent. They declared that manual counting with different standards in differentcounties violated the principle of equal treatment for all voters. But the decentralised US electoral system, with each state and county deciding its own procedures, has never had equality. Different states and counties have differing ballots, registrars, voting machines, postal ballot rules, and much else. Indeed, one faulty “butterfly” ballot design in a single Florida county misled thousands of Gore supporters to vote for Pat Buchanan, yet that inequality was upheld by the courts as part of the decentralised US system.

Why then did five conservative Supreme Court judges take a different view on counting undervotes? They were not stupid. They surely understood what fairness means. Alas, only one explanations makes sense: That they voted in a partisan manner, to ensure that the next President would be a Republican who would appoint more conservative justices to the Supreme court over the next four years.

Judges and politicians in Latin American banana republics may be lesssophisticated in fixing the system. But greater sophistication does not mean that the US election was not fixed in at least indirect fashion. The proper remedy would have been a state-wide manual recount with a uniform standard, no matter how long that took. Nobody can be sure which way such a recount would go. But Justice Stevens’ dissenting opinion said it all. “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the law.”

What do you think?