Dialogue: How to restore faith in crazy American quilt

By ANNA ADAMS*

After an election marked by the kind of startling plot twists and bizarre occurrences usually associated with Agatha Christie, many Americans are worried that their great democratic steam engine is careering off the tracks.

Bemused foreign observers, often lectured by the United States on democratic principles, couldn't, of course, resist a joke. Rome's La Repubblica ran the headline "A Day as a Banana Republic."

The election and the ensuing political brawl in Florida raise many more serious issues than the egg all over the face of the media. In the historically close election, the usual reports of confusing ballots, long polling lines and inaccurate counts suddenly took on new significance.

As the recounts rolled in, the appealing democratic ideal of an election as a decisive people's verdict started looking a little ragged around the edges. It became painfully apparent that the US' local-run system of elections has produced a crazy quilt of voting procedures.

In some counties people vote on a computer touch screen, in others they use punch cards counted by 1960s tabulating machines. Voter registration methods vary widely, as do polling resources. In poor communities people often face long lines to vote, and in this election some were even turned away.

The serious problems in Palm Beach, Florida, where a misleading ballot paper appears to have led to about 3000 Gore supporters accidentally voting for ultra-conservative Reform Party candidate Pat Buchanan and the invalidation of 19,000 double-punched ballots, is a case in point. And let's not get started on the Electoral College.

With George W. Bush's official margin of victory in Florida - on which the presidential election hangs - running at fewer than 1000 votes, and the unofficial counts wildly fluctuating, these issues are now the hot topic at the watercooler.

Polls show that Americans are genuinely alarmed by the situation. Amid the cacophony of hourly Florida recount reports and duelling campaign statements, one thing is apparent: this is all about political legitimacy.

Despite Bush's statement that he is confident he will be in office in short order, and his campaign's very public selection of a White House transition team, the brutal fact is that Bush is in no position to crown himself the victor.

Having received 200,000 fewer votes across the nation than Al Gore, his claim to the presidency rests on a razor-thin margin in Florida - a state that is halfway through several manual recounts, is still receiving absentee ballots and is mired in at least five citizens' lawsuits.

Gore's position is no easier, although at least he has not started measuring for the White House drapes. Although he won the national vote, Florida remains an unknown quantity and with it the Electoral College majority essential to win the presidency. The Bush campaign has indicated that it could seek recounts in Oregon, Iowa and Wisconsin, all states where Gore won by slim margins, and that could collectively affect the Electoral College.

Now that the shock of not hearing a victory speech on election day has worn off, Americans have started asking themselves: what happens next?

The Republicans' answer has been to focus on Bush's slim preliminary victory in Florida, turn the heat up for a quick resolution and implore Gore to concede to Bush for the good of the country.

James Baker, the former Republican Secretary of State, warned there was no reasonable end to the recount process. He charged that the dispute was putting the US election on hold, affecting the country internationally and threatening a constitutional crisis.

In an already uniquely stressful time, this sounds suspiciously like scare tactics. In reality, the US constitution is more than up to this situation. Unlike the swift and brutal transfer of power that follows an election in New Zealand, the US constitution provides for a slow and deliberative three-month transition.

The Electoral College is not due to meet until December 18, and the inauguration is scheduled for January 20, 2001. In the meantime, the US is hardly a boat without a rudder: it has a President and, judging by Bill Clinton's hosting of Middle East peace talks last week, he still seems to be showing up for work.

Should there be no new president on January 20, the constitution is famous for its exquisitely enumerated rules of succession that provide for an interim president in every conceivable scenario. (This alone has constitutional academics in overdrive. And just in case you're wondering, it's not Gore.) The courts, the last resort in this matter, can and will expedite anything involving the election.

So what should Bush and Gore do? First, as Gore has done, they must recognise that this moment in history is not only about who wins the election but also about democratic culture. As Gore put it in his statement last week: "What is at issue here is the fundamental fairness of our process as a whole."

As the recent struggles of fledgling Eastern European democracies like Serbia have shown, democracy is about more than just going through the motions of an election. Robust democracy requires a commitment to honouring the outcome of that election and the values that underlie it - even if that takes some effort.

Universal suffrage is at its foundation an expression of equality, and nothing is more guaranteed to make a voter angry than discovering that his or her entire deliberative process was rendered worthless. Already the airwaves are full of people talking of Bush's attempt to steal the election. A striking feature of interviews with residents of Palm Beach is that their outrage is focused not on the election result but on their sense of being cheated by the ballot.

But before the US can even get to the ballot problems, it has to get the vote counted. And even this is proving rancorous. Manual recounts - necessary because the 1960s vote-tabulating machines tend to reject a certain proportion of ballots - are under way at Gore's request in a number of counties in Florida.

The Bush campaign's attempt to obtain a court injunction preventing manual recounts seems profoundly unhelpful in this process and smacks of a fear of the likely recount results. Bush himself signed a bill as Governor of Texas allowing manual recounts in disputed elections.

Clearly both the Bush and Gore campaigns should be entitled to demand a manual recount in any county that they believe is exceptionally significant. Only once the states arrive at a final, certified count can any sort of political legitimacy be bestowed on the winner. And only then can the loser weigh the democratic value in pursuing lawsuits over secondary voting problems, such as those which occurred at Palm Beach.

In a Newsweek survey conducted last Thursday and Friday, 72 per cent of adults said they felt making sure the count was fair and accurate was more important than getting matters resolved as quickly as possible, and 69 per cent stated that the recount and delay were proof that the US electoral system was working, not a sign of weakness.

It is clear that a fair, meticulous and unobstructed recount in disputed counties is the minimum required by democratic values. If the political warfare in Florida and, in particular, Bush's latest legal moves prevent the achievement of this bare minimum, even this most robust and hallowed democracy is in danger.

* Anna Adams, a New Zealand solicitor specialising in constitutional law, at present practises in New York.