A somewhat ranting question
Richard D. Friedman
rdfrdman at umich.edu
Tue Oct 26 18:17:42 PDT 2004
My perspective is that elections are not perfect -- indeed, that some
imperfections (including intentional ones) are almost inevitable -- and
that in some very close cases the imperfections may alter the outcome, but
that this doesn't delegitimize the entire project; rather, what it means is
that the system is not perfectly sensitive. An ideal system would get the
"right" answer all the time. But if our system gets the "right" answer
about 99.9% of the time when the "real" vote is 50.1%-49.9% or more
decisive, and about 70% of the time when it's closer, we're not doing so badly.
I don't mean to be flip by offering a (timely) sports analogy. Sometimes
in a close game a bad call will make the difference, but that doesn't make
the outcome illegitimate. (For example, a demonstrably bad call at first
base probably cost the Cardinals the World Series in 1985.) A candid loser
will sometimes acknowledge that if he had done better he would have left
the outcome beyond the reach of bad calls. Now obviously, the analogy is
not perfect, for we are generally willing to assume that baseball umpires
making bad calls made honest mistakes and were not corrupt. But in the
larger view I don't think this difference is so important, if we accept
that it is virtually impossible to eradicate all wrongdoing in an election.
I agree with Kermit Roosevelt that the loss of the popular vote really
doesn't enter into the question of legitimacy here. And I suppose I'd also
say that legitimacy is beefed up by the availability of a judicial
remedy. The fact that, in my view, that remedy didn't work as it should
have in 2000 doesn't necessarily alter this; I believe that the majority in
B v. G managed to persuade themselves that they were doing the right
thing. (I wrote a piece called Trying to Make Peace With Bush v. Gore; I
concluded I couldn't, but I am still willing to acknowledge the good faith
of the justices who saw the matter radically differently form the way I did.)
Rich
At 08:13 PM 10/26/2004, Paul Finkelman wrote:
>Richard:
>
>I guess I disagree with you. How can we accept that an administration is
>legitimate if it gains office by fraud, intimidation, or just plain vote
>stealing? Sometimes of course the vote questionable activity is on both
>sides -- KKK violence in the 1876 election stopped black from voting; the
>electoral commission gave all the disputed states to Hayes even though it
>may be that Tilden had more votes in the ballot boxes (but of course black
>Hayes voters were afraid to vote or prevented from voting.). Florida in
>2000 is more complex, for sure. But, if we were to discoverer massive
>amount of registration fraud -- people throwing away registrations, or
>massive destruction of ballot boxes, and that decides the election, then
>the ligitimacy of the administration is surely up for grabs.
>
>I guess I would ask you, what would make an administration illegitimate if
>getting into office by fraud, violence, intimidation, or some other
>illegal activity does not. And is this not especially the case when the
>winner of the eletion loses the national popular vote by a substantial
>margin? It might be one thing if the winner won the popular vote and a
>single state is stolen to give the winner the electoral vote as well.
>Maybe that is ok because the electoral college is so deeply
>undemocratic. BUt that is not 2000.
>
>--
>Paul Finkelman
>Chapman Distinguished Professor of Law
>University of Tulsa College of Law
>3120 East 4th Place
>Tulsa, OK 74104-3189
>
>918-631-3706 (office)
>918-631-2194 (fax)
>
>paul-finkelman at utulsa.edu
>
>
>Richard D. Friedman wrote:
>
>>Oops! Thank you, Paul. I had forgotten. My basic point is still the
>>same -- even if there is illegitimate activity that alters the result in
>>a close contest, it does not make the resulting government
>>illegitimate. I do agree with Mark Graber's point that the effect of
>>these jolts is cumulative. But even if the system is somewhat weighted
>>to one side systematically, it doesn't render the government
>>illegitimate. I assume there's been some weighting against poorer people
>>who, for various reasons, find it more difficult to vote than do more
>>affluent people.
>>
>>Rich
>>
>>
>>At 04:27 PM 10/26/2004, Paul Finkelman wrote:
>>
>>>The fact is that if Nixon carried Illinois in 1960 JFK would have won;
>>>The idea that the Democrats stole the election is just a Republican Big
>>>Lie that has been repeated so many times that most people believe it.
>>>The outcome was 303 electoral votes for Kennedy; 219 for Nixon; Illinois
>>>had 27; move those 27 to Nixon and the outcome is
>>>276 - JFK
>>>246 - Nixon
>>>
>>>Whether Mayor Dailey stole more votes in Chicago than the Republicans
>>>did downstate is another question
>>>--
>>>Paul Finkelman
>>>Chapman Distinguished Professor
>>>University of Tulsa College of Law
>>>3120 East 4th Place
>>>Tulsa, Oklahoma 74104-2499
>>>
>>>918-631-3706 (office)
>>>918-631-2194 (fax)
>>>
>>>paul-finkelman at utulsa.edu
>>>
>>>
>>>Richard D. Friedman wrote:
>>>
>>>>I think the only way Sandy's first assumption could plausibly be true
>>>>would be if, as measured "properly", whatever that means, the election
>>>>was really, really close, as it was in 2000. And we learned in 2000
>>>>that our measurement devices for really, really close elections aren't
>>>>perfect, and also, I believe, that in such a case factors that ought
>>>>not enter in, like the political preferences of the people who happen
>>>>to be on the Supreme Court, might nevertheless prove decisive. But it
>>>>doesn't mean that the government is illegitimate; had Al Gore gotten a
>>>>few thousand more votes in Florida, he would have been President
>>>>without question. Similarly, in 1960, maybe Democrats in Illinois did
>>>>bad things that threw the election to Kennedy. If so, it's a terrible
>>>>shame and it shouldn't have happened. But it's not as if Nixon or Gore
>>>>won 60% of the vote in the decisive state and was yet denied the
>>>>Presidency -- then there would be real question of legitimacy.
>>>>Rich Friedman
>>>>At 03:10 PM 10/26/2004, Sanford Levinson wrote:
>>>>
>>>>> a) Assume that George Bush is "re-elected" in the Electoral College
>>>>>(having lost to John Kerry in the popular vote) because of one or
>>>>>another judicial decision, by a Republican-dominated Court, in a split
>>>>>vote, deciding a highly contested issue his way. B) Assume further that
>>>>>the House remains Republican only because of the Tom DeLay gerrymander
>>>>>that, one can surmise, five justices of the US Supreme Court believe is
>>>>>probably unconstitutional. (I see no other explanation for returning
>>>>>the case to the original district court, given that it would have been
>>>>>altogether easy to say that it was covered by Veith and the five votes
>>>>>that held that it was either nonjusticiable (4) or that no judicially
>>>>>manageable standards had yet been discovered to apply to the situation
>>>>>(Kennedy).) (We can assume, for sake of the question, that the Court
>>>>>ultimately does rule the DeLay gerrymander unconstitutional, sometime in
>>>>>2006.) c) Assume further that the Senate is 50-50, with Dick Cheney,
>>>>>returned to the Presidency of the Senate because of "a" above. So the
>>>>>question, which is entirely serious, is why should any Democrat, under
>>>>>these circumstances, view the United States as having a legitimate
>>>>>government? If you wish you can reverse the polarities and assume a
>>>>>similar Kerry "election," and the Democrats taking the House only
>>>>>because of a Democratic gerrymander (though I'm not aware that any of
>>>>>the current gerrymanders even begin to compare with DeLay's rape of
>>>>>representative government in Texas).
>>>>>
>>>>>If any of you you think this question does not relate to "constitutional
>>>>>law," please let me know why.
>>>>>
>>>>>sandy
>>>>>_______________________________________________
>>>>>To post, send message to Conlawprof at lists.ucla.edu
>>>>>To subscribe, unsubscribe, change options, or get password, see
>>>>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>>>>
>>>>>Please note that messages sent to this large list cannot be viewed as
>>>>>private. Anyone can subscribe to the list and read messages that are
>>>>>posted; people can read the Web archives; and list members can
>>>>>(rightly or wrongly) forward the messages to others.
>>>>
>>>>
>>>>------------------------------------------------------------------------
>>>>_______________________________________________
>>>>To post, send message to Conlawprof at lists.ucla.edu
>>>>To subscribe, unsubscribe, change options, or get password, see
>>>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>>>Please note that messages sent to this large list cannot be viewed as
>>>>private. Anyone can subscribe to the list and read messages that are
>>>>posted; people can read the Web archives; and list members can (rightly
>>>>or wrongly) forward the messages to others.
>>>
>>>
>>>
>>>
>>
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu
>>To subscribe, unsubscribe, change options, or get password, see
>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>Please note that messages sent to this large list cannot be viewed as
>>private. Anyone can subscribe to the list and read messages that are
>>posted; people can read the Web archives; and list members can (rightly
>>or wrongly) forward the messages to others.
>
>
>
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20041026/58bbd903/attachment.htm
More information about the Conlawprof
mailing list