Michael Kinsley discusses some books on American Democracy in today's New York Times Book Review. One of the more interesting of many interesting passages is this one on the stolen election of 2000:
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It is considered tiresome to complain that the White House was stolen in 2000. In fact, the ultimate triumph of the George W. Bush forces in the 2000 dispute has been to stamp any discussion of that episode as bad sportsmanship and therefore, in a way, undemocratic itself. You lost fair and square: “Get over it,” as Justice Scalia advised.
Call me bitter: I am not over it and don’t want to be over it. I still find it shocking that democracy was so openly subverted, and even more shocking that so few others seem to share my shock. “Stolen”? That depends, as the man said, on what you mean by that word. Here is what I mean. First, a clear majority of those who voted in Florida intended to vote for Gore and walked out of the voting booth (or away from the mailbox) sincerely believing that they had done so. Vindicating the assumptions of those who did vote about whom they voted for (a standard first suggested, as far as I know, by Jacob Weisberg of Slate) seems about the least you can demand of a voting system, and Florida failed this test.
Second, at every stage, Republican government officials thwarted all attempts to let democracy work in the minimal sense of the previous paragraph. Repeatedly, they interpreted the “discretion” that any public official must have as a license to produce the result they wanted, rather than as creating any obligation to do what is right. The Florida recount debate was a festival of intellectual dishonesty. On a whole series of technical issues (those butterfly ballots mispunched by the confused old ladies of Palm Beach, or military absentee ballots mailed after the deadline) there were plausible arguments on both sides. And these arguments had no obvious ideological cast. There is no natural conservative or liberal position on the dilemma of the dangling chad. So it is remarkable — amusing, depressing, not surprising I guess — how quickly and passionately Democrats and Republicans staked out their respective cui bono positions. But Republicans controlled the state and federal governments, so they got their way.
The Supreme Court’s ruling in Bush v. Gore was surprising. Shocking, in fact. Probably the most fatuous — i.e., knowingly stupid — Supreme Court decision in history. The justices of Plessy v. Ferguson (1896), who upheld racial segregation, could at least plead historical blinders. The majority justices of Bush v. Gore have no such excuse. Both as a raw assertion of judicial power and as a more specific interpretation of the 14th Amendment, it was not merely wrong, but spectacularly wrong in precisely the ways that conservative justices like Scalia, Rehnquist and Thomas had been objecting to for years. The justices invented a nonsensical equal-protection “right” — essentially, the right to an equal risk of having your vote miscounted — and held that any attempt to correct mistakes through a recount was unfair to those who didn’t get recounted. And then they declared this alleged right to be a one-time-only offer, like a grocery-store coupon. As Adam Cohen pointed out recently on the New York Times editorial page, the coupon has indeed expired. Bush v. Gore is rarely cited or applied in other situations.
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