FACULTY FOCUS
Courting Trouble Liberal overdependence on the courts, combined with an obsessive preoccupation with church-state symbolism, has reached its limit. By Burt Neuborne
This essay was published on January 4, 2005 in
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udging from the views of my respected co-authors in this report, American democracy stands indicted for its performance in November’s election. Yet in several important respects, the system performed better in 2004 than it has in years. That’s not easy for me to say after such a disheartening election day. But you cannot measure the health of a democracy simply by who wins. Voter turnout increased by an astonishing 12 percent, adding 15 million new voters, many from the inner cities. Racial minorities and younger voters turned out in larger numbers than ever before. The two major presidential candidates enjoyed ample, legitimately raised funding, including millions of small contributions raised on the Internet. The candidates posed stark, well-defined choices. A third-party protest candidate was available. The election delivered a clear winner. If John Kerry had won, liberals would be touting 2004 as the mother of all elections. Don’t get me wrong: American democracy is far from robust. President Bush’s narrow lead in Ohio obscured the fact that the same problems with vote tabulation that plagued the 2000 election in Florida were present this time around. If the election had been a little closer, we would have had five Floridas, with lawyers and courts deciding what ballots got counted in Ohio, New Mexico, Nevada, New Hampshire, and Iowa. Instead of butterfly ballots and hanging chads, we had misfiring electronic machines with no paper records, hundreds of thousands of disputed provisional paper ballots with no national standard for counting them, appallingly long lines to vote (especially in inner-city precincts), missing registration cards, and a nationwide inability to handle the surge of new voters smoothly. If the system nearly breaks down when 59 percent of the electorate votes, what would happen if we achieved 70-percent turnout similar to that in many European elections? We desperately need a congressional overhaul of the presidential voting process, from modern voting machines we can trust to
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THE LAW SCHOOL
uniform, same-day registration procedures, from a standardized provisional ballot that ensures that all qualified votes are counted under the same ground rules to a shift of election day to a weekend or a holiday so working people can vote conveniently. That 18th-century relic—the Electoral College—is also waiting to cause mischief. A shift of about 40,000 total votes in New Mexico, Nevada, Iowa, and New Hampshire would have resulted in an electoral tie of 269 to 269. Even more dramatically, a shift of fewer than 60,000 votes in Ohio would have elected Kerry, despite Bush’s 3.5 million nationwide majority. I would have chuckled at the irony of deposing Bush—a man whose claim to the presidency was based on subverting democracy—without winning the popular vote, but it would have been terrible for democracy, and it could happen in 2008 to either candidate. Given the appalling collapse of the Supreme Court in 2000, and the less than edifying performance of courts this time around in dealing with standards for counting provisional ballots, felon disenfranchisement, and reliable voting machines, it is madness to leave close elections to judicial determination. We should be concentrating on the enactment of nationwide, reasonable
presidential voting rules that should make it unnecessary in the future to turn to courts to decide close elections. Equally important, we should be rethinking our overdependence on courts as frontline implementers of liberal values.
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e are at the close of a 50-year cycle during which Democrats and Republicans have pursued dramatically different domestic agendas. Democrats have championed the social values of the Enlightenment— toleration, secularism, equality, and free expression. Republicans, meanwhile, have embraced Adam Smith, resisting the government wealth transfers and market regulation often sought by Democrats in the name of equality. In the end, both political parties won their core struggle. Democrats succeeded in dismantling barriers to equality based on stereotype, building a powerful system of free expression and respect for cultural diversity while walling religion off from the exercise of public power. At the same time, Republicans succeeded in enshrining the free market as the engine of economic organization. But the two parties used very different strategies to achieve their victories. Republicans concentrated on politics, largely because by the end of Franklin Delano Roosevelt’s fourth term they realized there was no chance of undoing the New Deal in the courts. After absorbing a terrible initial defeat in 1964, Republicans began the long job of rebuilding their political base. Democrats, almost always acting on behalf of minorities doomed to short-run defeat in the political arena, turned to the courts. Year