Federal and Election Reform (2002)

I. INTRODUCTION: THE 2000 PRESIDENTIAL ELECTION In the immediate aftermath of the 2000 presidential election, systemic if not radical reform was high on the agenda of the chattering classes. The newly elected Senator Hillary Rodham Clinton of New York, among others, pledged to introduce a constitutional amendment abolishing the Electoral College.1 A chorus of other public officials, in varying degrees of dudgeon, proposed national regulation of everything from polling hours and ballot forms to election-day television reporting.2 Conservatives had particular cause for alarm. Despite the Supreme Court's explicit statement limiting the law of the case to the unique facts before it, many feared that the equal protection rationale of Bush v. Gore3 would provide intellectual fodder for radical legislative reform or, equally as bad, provoke litigation seeking to expand federal court jurisdiction over electoral processes. Today, however, a year seems a world away. These days, it would take a very sensitive seismograph to detect even a trace of the reformist tremors that animated so many minds in the winter of 2000-2001. This lapse occurred for three reasons. The first, simply stated, has to do with the passage of time. As is often the case with passionate enthusiasms of the moment, the Madisonian complexity of the American political system induces calming sobriety. Many Democrats, no doubt, will continue to believe that five Justices on the Supreme Court betrayed their oaths of office for partisan purpose.4 Factional zeal of this sort is difficult to sustain, however, in the absence of credible evidence, especially when it finds no resonance among the public. Much to the chagrin of certain Democratic partisans, most Americans appear to be satisfied that the denouement of the IMAGE FORMULA23 2000 presidential contest conformed to constitutional proprieties.5 They recognize a stubborn fact that refuses to yield to the endlessly refined post-mortems of the professoriate: Parse the numbers as one will, the election was essentially a dead-heat. When a hundred-million ballots are cast, and one has to go to the third decimal place to determine the result, at least half the electorate is unlikely to be offended no matter who is certified as the winner.6 A significant portion of the remainder, it turns out, valued prudential accommodation more than the triumph of their favored candidate. Nor did the public expect perfection in the resolution of what was, after all, an unusually complicated legal and factual dilemma. The public did expect that officials charged with resolving the dilemma would do so justly, that is, in accordance with extant constitutional norms. Ultimately, that expectation was met. Thanks to television, the people were given a ringside seat at an extended ordeal-by-litigation, receiving a short course in constitutional law in the bargain. They also became minor authorities on some of the more arcane features of electoral law and administration. Terms like butterfly ballot, chad, overvote, and undervote, hitherto confined to the private domain of technical experts, became staples of common vocabulary.7 Citizens were also exposed to a colorful cast of characters and to numerous examples of extraordinary legal advocacy. Somewhere along the way, Americans appear to have concluded that what mattered most was adherence to existing rules and, above all, an orderly sense of constitutional finality. The public also appears to have concluded that the Supreme IMAGE FORMULA25 Court's decision met both criteria, despite efforts by a substantial portion of the intellectual elite to convince them otherwise.8 The resilient strength of Mr. Madison's Constitution proved itself yet again. The Republic still stands. Those who do not share the public's sentiment on the resolution of the electoral controversy will, of course, live to fight again another day. …