jim baker and rhetoric

[James Maule]

There are documented instances (in large numbers) of voters getting out of line (the lines, of course, support the notion that turnout was high) when the media calls made it look as though Gore was on the way to an electoral college win. Perhaps the folks who went home would have split their tickets one way or another? Several political science researchers apparently have embarked on empirical research projects to determine who went home and what they would have done.

More importantly, there are documented instances (especially in California and other western states but also in the Florida panhandle) of Republican phone bank operators going home (at about the same time the Democratic union machine was being turned to phone calling in New Mexico and Arizona).

Whether the voters who went home, and the voters who would have left home and gone vote after getting a phone call, would have voted one way or another is an interesting question, but the initial numbers suggest that though it would not have turned states it would have made a difference in the popular vote. It's not as though Gore has racked up a 1 or 2 million vote lead. He has about a 200,000 vote lead. If 10 Republican voters stayed home in each Republican precinct in California, the popular vote would have been very different.

So the media fiasco may not have affected the electoral college count (perhaps it did), but it surely affected the popular vote total, which makes reliance on the national popular vote as a justification for determining the "will of the people" of Floridad a doubly dubious proposition. The impact of technology probably does require a re-examination of the Constitution's provisions for elections, but I'm not sure that repeal of the electoral college alone would prevent the sort of damage that is done by having exit pollers make projections. If nothing is done, the impact of the combination of media First Amendment rights and technology end up having a negative impact on citizen's constitutional voting rights. Perhaps the current situation is not so much a constitutional crisis but a symptom of the underlying consitituonal crisis, namely, the lack of any reassurance that without change the same scenario will play itself out again in 2004, 2008, .....



Jim Maule
Professor of Law
Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule


>>> bryanw at TJSL.EDU 11/22/00 11:41PM >>>
> -----Original Message-----
> From: James Maule [mailto:maule at LAW.VILLANOVA.EDU]
> Sent: Wednesday, November 22, 2000 2:39 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: jim baker and rhetoric

> The not-so-easily-disguised and carefully timed media
> declaration for Gore in Florida, the reversal, the calling of
> Gore states far sooner than the calling of Bush states (even
> though Bush had and maintained larger leads), all with the
> effect of inducing (admittedly too-quick-to-give-up)
> Republican voters and volunteers to pack it up and go home
> (suggesting that perhaps if no media calls had been made
> until 11pm EST that the popular vote outcome and the results
> in close West Coast Congressional races would be very different).

I (as a Democrat) agree the media's election-night calls were negligent at
best and highly suspect at worse, but it's wishful thinking (for a
Republican) to suggest that early presidential calls on the East Coast
influenced West Coast races.  Out here in California, the presidential race
was never close, so that was never a driving force in turnout.  But turnout
was in fact very high (on both sides of the political spectrum) because of
our closely contested congressional and legislative races---which Democrats
won, by and large.  The victories in the close congressional races were no
fluke.  Democrats gained seats in the California state legislature too,
building a 26-14 majority in the State Senate, and a 50-30 edge in the State
Assembly.

I think the inflamed rhetoric on both sides is a symptom of the fact that
this was a very close election nationally, and yet each side won rather
decisive victories in most particular states and regions (Florida being an
obvious exception), hence feeding a sense of victory and entitlement, and
yet frustration, on both sides.

Bryan Wildenthal, Thomas Jefferson School of Law