The U.S. Supreme Court has mercifully ended the most turbulent election in modern American history. It has also safeguarded the Constitution, despite the rancor about partisan judges.
Seven justices ruled that the subjective vote recounts in Florida did notcomply with equal protection guarantees in the Constitution. A five-membermajority accepted the Florida Supreme Court’s conclusion that the electionscheme made by the Florida Legislature was intended to secure a slate ofelectors immune from challenge by the U.S. Congress. To qualify forimmunity, that slate had to be chosen by Dec. 12 -- a date that could not bemet if further recounts were to ensue. Thus, to allow more recounts wouldcontravene the intent of the legislature and therefore Article II of theU.S. Constitution, which gives state legislatures plenary (or absolute)power to set the rules for presidential elections.
In the abstract, vote recounts done properly can show a fairerrepresentation of the popular will. However, Americans will have to come togrips with more than recount standards since this year’s election. Twoconcerns are: 1) the electoral system itself – as contrasted with popularvoting, and 2) the intercession of federal courts to resolve mattershistorically left in state hands.
First, popular voting. James Madison observed in Federalist 10 that the newConstitution would establish the United States as a republic, not ademocracy. More than two centuries later, we remain a constitutionalrepublic. One man, one vote is the controlling principle, but politicaloutcomes may not always be imposed by majority rule. Each state has twosenators, regardless of population; three-fourths of the states must ratifyconstitutional amendments; presidents may veto legislation, but a veto canbe overridden by two-thirds of each house of Congress; our federal judiciaryis appointed, not elected; and a supermajority is required to approvetreaties, impeach a president, or expel a congressman.
Still, after this year’s election, political scientists will renew theirepisodic demand that we move toward a “purer” form of democracy by replacingour electoral system with a popular vote. We must resist that temptation.Popular voting promotes sectionalism. It favors cities over rural areas, andlarge states over small. Popular voting also increases the number andinfluence of marginal political parties. That means expensive andtime-consuming runoff elections, or a willingness to abide by results thatmight be favored by a small minority of voters.
Second, the GOP stands accused -- not entirely without justification -- ofhypocrisy on the issue of federalism. How can George W. Bush’s lawyersexhort the U.S. Supreme Court to intervene in a matter that traditionallyand constitutionally has been consigned to state jurisdiction? Didn’t therequest for Court intervention run counter to professed GOP regard for statesovereignty? The answer is no, for two reasons.
First, the Florida imbroglio was less a matter of federalism than it was astruggle between the political and judicial branches of state government.The Supreme Court was asked by the GOP to umpire that struggle because itimplicated both the Constitution and federal statutes. But regardless whichbranch of state government prevailed, final authority vested in a state nota federal institution.
Second, Republicans too often have a crabbed and mistaken view offederalism. Federalism is not just about states’ rights. To be sure, theframers established a federal government of enumerated powers. And the TenthAmendment, ratified in 1791, provided that those powers not delegated to theUnited States were reserved to the individual states or to the people. Butin 1868, when the Fourteenth Amendment was ratified, the relationshipbetween federal and state governments was restructured. And Republicans,railing against federal legislative incursions and judicial activism, seemnot to have grasped the significance of the post-Civil War transformation.
For the first time, the Constitution acknowledged that state governmentsmight violate constitutionally guaranteed rights. Accordingly, thelegislative and judicial branches of federal government were empowered toremedy those violations. It is in that context that the U.S. Supreme Courtwas justified in preventing Florida state officials from denying equalprotection to voters within and without the state. That was not mereactivism -- at least not in the sense of fabricating entitlements nevergrounded in the Constitution. Rather, it is judicial responsibility,allegiance to the law and to the Constitution, rooted securely in a theoryof rights as propounded by our framers.