Deals & Majority Rule

[Leslie Goldstein]

Dear Mark,
we may not know who "won," Florida given the unwillingness of Bush to ask for a hand recount everywhere and the unwillingness of Miami to finish its own, but I do consider it beyond dispute by any reasonable person
1) that Gore supporters who went to the polls in Flordia and attempted to vote for him for president outnumbered by MANY thousand comparable Bush supporters (I refer to the 20,000 Gore-Buchanan votes)
2) that if Gore had the Florida electoral votes , he would have both the pop. vote and the electoral vote.
Charges of an attempt by Gore to "steal " this election therefore strike me as very far-fetched.
this situation does not give me much stomach for compromise.
LFG

Mark Graber wrote:

> The response to this claim is simple.  We really do not know who won Florida.  The situation is unprecedented so that all parties to the election are likely to have a reasonable basis for thinking that they got more votes, that the reason for the eventual result was a partisan imposition of one method of counting ballots not much better than some other method of counting ballots.
>
> So, what about a lawprof letter to the NYTimes urging both candidates to have their electors vote for Powell and Breaux (on the assumption that the Governor of Louisiana is a Democrat--if not substitute another conversative southern democratic senator who, if VP, will be replaced by a Democrat).
>
> Mark A. Graber
>
> >>> rbarnett at BU.EDU 11/23/00 02:56 AM >>>
> To the (small-"d") democratic majoritarians on this list:
>
> I have long been told that ours is a "democratic" system based on majority
> rule (subject of course to constitutional constraints) in which "every vote
> counts."  To those who don't vote, it is often said:  "What if your vote
> made the difference?"
>
> For those who believe this, what is illegitimate about winning by just one
> vote that necessitates any sort of deal between the winner and the loser?
> Why is a win by a few hundred votes considered a "tie"?  True, the closely
> divided Congress will hinder either Bush or Gore--and would make cross-party
> cabinet appointments prudent--but this is independent of the margin of
> victory for President or how many recounts it took to determine a winner.
> Setting aside the issue of a bare majority victory in Florida and a
> resulting bare majority victory in the Electoral College vs. a bare national
> popular majority (since these are the game rules we have been playing by for
> a long time), would someone who believes in majority rule explain wy it is
> "illegitimate" to win by one vote and subsequently assume office and "rule"?
>
> Putting the question somewhat differently: Is it morally preferable for a
> candidate supported by a landslide of 60% imposing policies on the
> dissenting 40% than for someone who wins by 50.1% imposing policies on a
> dissenting 49.9%?  And what about a President who, like Bill Clinton in
> *both* of his elections, failed to receive even 50% of the votes?  Should
> Bill Clinton have made a deal with George H.W. Bush or Ross Perot or Bob
> Dole?  Did anyone seriously suggest this at the time?  Whatever happens
> here, BOTH Bush and Gore got a higher percentage of the popular vote than
> Bill Clinton did in his first election.  From the perspective of "democracy"
> why doesn't this matter when it comes to the right to govern legitimately?
>
> In sum, I would like to know what theory of legitimacy is operating here.
> These are not meant to be rhetorical questions.  I really want to know what
> small-"d" democrats and others would answer them.
>
> Randy
>
> __________________________________________
> Randy E. Barnett
> Austin B. Fletcher Professor
> Boston University School of Law
> 765 Commonwealth Ave.
> Boston, MA  02215
> mailto:rbarnett at bu.edu
> (617) 353-3099 (phone)
> (617) 353-3077 (fax)
> http://www.bu.edu/rbarnett
> http://www.bu.edu/rbarnett/SOL.htm (Structure of Liberty page)
> http://www.LysanderSpooner.org (Lysander Spooner Website)
>
> > -----Original Message-----
> > From: Discussion list for con law professors
> > [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of DAVID E. BERNSTEIN
> > Sent: Wednesday, November 22, 2000 9:40 PM
> > To: CONLAWPROF at listserv.ucla.edu
> > Subject: Re: Deals
> >
> >
> > If Bush and Gore were true statesmen, compromise would have been
> > achieved days ago.  However, Bush truly believes he won, and Gore, I
> > think, thinks he was robbed given that he won the popular vote and the
> > ballots in Palm Beach seem to have prevented him from winning Florida.
> > I still think he would have had a better case taing this view to the
> > electoral college instead of trying to win by forcing Democratic
> > officials in South Florida to be the oracles of dimpled ballots. Still,
> > I've suggested compromise before, and here's another one:
> > How about Colin Powell as President for one year, with a bipartisan
> > cabinet, both parties agree to swiftly pass a constitutional amendment
> > allowing for a one-time additional presidential election the First
> > Tuesday of November, 2001?
> >
> > David Bernstein
> >
> > <<< "Volokh, Eugene" <VOLOKH at MAIL.LAW.UCLA.EDU> 11/22  9:22p >>>
> >         I actually like the idea of a compromise, and I think that even
> > without a deal, the winner would be wise to appoint several members of
> > the
> > other party to his Cabinet, and to explicitly and honestly refrain from
> > appointing his first ideological choices to the Court.  Given the lack
> > of
> > mandate and the closely divided Congress, any government must be
> > bipartisan
> > -- might as well make a virtue out of necessity.
> >
> >         It's not clear to me, though, that the party can make a deal
> > about
> > the Washington Senate election; it would take Gorton's or Cantwell's
> > agreement for that, and I'm not sure whether such an agreement would be
> > forthcoming.
> >
> > Mark Graber writes:
> >
> > > Curiously, I rather like the Florida Supreme Court decision when they
> > > leave things open.  The worst and most likely scenario is that this
> > matter
> > > will be settled in favor of one side (probably Bush) and not the
> > other.
> > > What the nation needs now is compromise.  Remarkably, in the abstract
> > they
> > > are rather simple.  A more conservative Republican and I found several
> > we
> > > could agree on over lunch (one version--agreement that no justices
> > below
> > > 60 get appointed to the Supreme Court until the next election--all
> > > promises upheld by fillibusters in the Senate--whoever wins the White
> > > House conceeds the Washington senate election).  The longer the courts
> > can
> > > prevent any unilateral declaration of ictory, the better.
> > >
> > > Rather than figuring out what arguments out side should make, should
> > one
> > > function of the academics on this list figure out what a fair
> > compromise
> > > might be, given that anyone who can state with a good deal of
> > confidence
> > > who won Florida is merely trying to impress a justice, class, or
> > reporter.
> > >
> >