Home > Oz Politics > An afterthought on Bush vs Gore (crossposted on Crooked Timber)

An afterthought on Bush vs Gore (crossposted on Crooked Timber)

October 25th, 2004

I was thinking about the prospects for the US election and also about the probability of casting a decisive vote and it struck me that a situation like that of Florida in 2000 would have had a quite different outcome in Australia. In a situation where there were enough disputed votes to shift the outcome (and no satisfactory way of determining the status of those votes), the Court of Disputed Returns would probably order a fresh election. It seems to me that this is a better way of resolving problematic elections than attempts to determine a winner through court proceedings[1], though I’d be interested in arguments against this view.

In view of the long delay between election and inauguration, this solution would seem to be particularly appealing for the US. However, it seems clear from this page that the American constitutional tradition does not allow for such a possibility, preferring such devices as drawing the winner from a hat, if nothing better can be found. I wonder if there is a reason for this, or if it is just one of those things that doesn’t come up often enough for people to think about fixing it?

fn1. Obviously, once the situation arises, one side or the other will see an advantage in going through the courts, or allowing state officials to decide,and will oppose a fresh election. But ex ante, it seems as if agreeing to a fresh election in such cases would benefit both sides.

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  1. Dan Hardie
    October 26th, 2004 at 05:18 | #1

    I suspect it might have anything to do with the individual States’ reluctance to cede ex post judgements on election arrangements to the Federal Courts for fear that that might lead to some arrangement whereby the Federal Government assumed ex ante responsibility for holding and supervising elections. Here in the UK I can’t think of anything like the Court of Disputed Returns, but the electoral law places an Electoral Commission in overall charge of ballot arrangements. I think there are a few problems with this, but nothing like those of the Florida fiasco.

  2. eric bloodaxe
    October 26th, 2004 at 05:49 | #2

    The American system is peculiar, and looks as if it was designed to permit fraud. One president lost when state electors in one state voted against their mandate.

  3. ML
    October 26th, 2004 at 11:58 | #3

    “…I wonder if there is a reason for this..”

    My take on this, recalling bits read over the years, is that it is a result of the founding fathers’ fundamental ambiguity about democracy itself , reflected best in the electoral college itself – a classic moderating device. And of course the classic recursive irony:because democracy often expresses itself as mutually cancelling-out vested interests preventing change(for this reason the US had the first but now has the most obsolete TV technology) for the same reason (of democracy as it is) it would seem there is no chance any time soon of introducing any real democratic improvement to the means of electing the president.

  4. October 26th, 2004 at 11:59 | #4

    John, I think that your solution works a whole lot better in a country with compulsory voting. In a country with voluntary voting which adopted your system, if I were, to pick a random name, the Republican Party, I might create a dispute to cause a fresh election. I would do this in the belief that a segment of my voters (evangelical Christians) would turn out again, whereas a large number of my opponent’s voters (working class Decmocrat voters; the black vote) would prove more apathetic and would be harder to entice to the polling booth a second time.

  5. October 27th, 2004 at 11:22 | #5

    A couple of days ago I tried to post something here but something prevented it. In the hope that it was an intermittent fault, I am trying again below.

    Thumbnail sketchy overview:-

    JQ, in the past you’ve expressed the view that an electoral college is a mere
    atavism. It’s not, it’s there to provide a jaw-jaw proxy for what the locals of
    the area would organise themselves into if they were ever to resort to the
    bullet rather tha the ballot. No matter how imperfect, anything that “improves”
    the democratic quality of the result at the expense of distncing it from a
    useful proxy for violence makes it more likely that sooner or later the result
    will be abandoned in favour of the final arbiter. I can give you lots of solid
    history, but for now I just want to present that without proof and let you see
    where that takes people.

    Anything a Court of Disputed Returns ordered would equally be ignored unless it
    matched people’s feelings of fairness, i.e. did not provoke ideas of “we wuz
    robbed”. Any power to order a fressh election is vulnerable to people
    realising that it opens up the possibility of selective editing, i.e. keeping on
    voting until the people get it right. If that becomes recognised, it weakens the
    strength of the conventions that make people accept the proxy rather than
    resorting to the ultimate arbiter.

    In the end, the only backing for the proxy is the threat of what will happen if
    people give up on it, and you really, really can’t afford to play unfair by
    sitting on the safety valve even in the service of some purer theory. The system
    gets enforced and reinforced by the occasional deviations from acceptance that
    don’t go so far as breaking the system; the close calls remind people to play
    fair.

    The historical precedent and actual machinery that applies in the USA is the
    compromise worked out in the face of the disputed Tilden-Hayes election in the
    19th century. Don’t ever get the idea that that was a failure; that was
    precisely what the electoral college system was meant to highlight. Any failure
    of the system to approximate “fairness” is best remedied by making the effective
    power of the people a closer match to one man one vote, not by decreeing
    that one man one vote will be accepted while allowing the underlying patterns of
    force to deviate from that.

    (And when you consider how big that overview was, you ought to be pleased I
    didn’t give a fuller version!)
    GST+NPT=JOBS

    I.e., a Goods and Services Tax (or almost any other broad based production tax),
    with a Negative Payroll Tax, promotes employment.

    See http://member.netlink.com.au/~peterl/publicns.html#AFRLET2 and the other
    items on that page for some reasons why.

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