Finality

[Mark Tushnet]

Just a short note on prudence and tradition:  A Gore supporter of a
certain type might say, "Sure, the prudent thing is to follow the deeply
embedded traditions that have developed over the years.  But what's at
stake is precisely the characterization of those traditions. We have two
'candidates' for the tradition:  lock-step voting by members of the
electoral college, and plurality-popular-vote winner prevails.  Until
now those two traditions overlapped almost entirely, but now they don't,
and we have to choose which tradition to follow, when either course will
be thought irresponsible by a segment of the population.  One point in
favor of going with the plurality-winner tradition is that twice in the
past [I think -- MT], when there have been departures from that
tradition in favor of the electoral-college/House election tradition,
things were really bad.  I have in mind the Adams-Jackson election, and
the Hayes-Tilden election.  Where we know who won the popular vote, we
should do what we can, including attempting to persuade members of the
electoral college to act as responsible deliberators."
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