U.S. faces clear, present danger: Politicization of law

By Harvey Stockwin

HONG KONG (JP): India and the United States vie with each other for the title of the most litigious society on earth. In both nations, citizens take recourse to the law courts at the proverbial drop of a hat.

But the United States is ahead of India in one related attribute --- the United States has far more lawyers per head of population than India does.

So it was with a sense of sickening dread that I heard this week NOT the result of the American presidential election, but instead the news that at least 50 high-powered lawyers were hastening to the state of Florida on behalf of the Democratic Party, quickly followed by a similar sized squad of high-powered lawyers representing the Republicans.

Dread? A brisk Florida recount was of course imperative. But it is most unlikely the lawyers would stop at that.

As numerous arguments and complaints about the electoral process hastily surfaced, equally numerous court cases would as quickly threaten. These could easily serve to keep those and many more lawyers happily preoccupied.

So the threat arises that the result of the presidential election will be held in abeyance way past Jan. 20, 2001 when the 43rd President of the US is due to be sworn in.

The United States obviously faces a clear and present danger: the undue politicization of the legal process, plus the excessive legalization of the political process.

In India one aspect of the litigious society is that whole families bankrupt themselves pursuing arcane land ownership quarrels over minor boundary disputes right through the court system up to the Supreme Court if possible.

In the United States, the excessively litigious society risks the possible delegitimization of the next government of the world's most powerful nation, and most vibrant democracy.

Traditionally, the deep political divisions in a normal democracy fade away after election day, once the results are all in. But discord can only multiply if, instead, those political divisions continue to fester, amidst unending questioning of the election result itself.

So does history offer any solace, any comfort that American democracy will not be swamped in a deluge of litigation? Any hope that sanity will soon prevail over excessive partisanship?

First, what about the previous close electoral battles in the Electoral College? The Electoral College incidentally was set up to preserve and protect democracy in the United STATES, not the united STATE.

It is not true that the popular vote does not determine the election results -- it certainly does, since the popular vote determines the allocation of Electoral College delegates in every one of the 50 separate sovereign states. Conversely, the overall popular vote does not determine the result because the United States is NOT a unitary state, but a federation.

One previous close Electoral College battle began on Election Night in 1916, as the Republican candidate for United States President, Charles Evans Hughes went to bed believing that his resignation as a Justice of the Supreme Court earlier that year had been worthwhile after all, -- and that he would be the next President.

The incumbent, President Woodrow Wilson, was running behind Hughes in the Electoral College in what had been a very close race. Wilson had suffered the indignity of losing in his own home state of New Jersey -- a failure repeated by Al Gore last Tuesday when he failed to win in his own bailiwick, the state of Tennessee.

The year 1916 was long before radio and television had so telescoped time and continental distance in the United States as to make same-day electoral results a regular, though sometimes unreliable, compulsion.

In 1916, the race was so close that everything depended on the vote out on the west coast in California. Hughes went to sleep on Election Day confident that California would put him over the top. But he had made the elemental mistake of unintentionally offending California's powerful senior Senator Hiram Johnson during the campaign, with the result that Johnson had worked hard in support of Woodrow Wilson.

The morning after the election, a journalist phoned up Hughes, whose secretary told him "the President (meaning the President- elect) is asleep and cannot take your call until he wakes up."

"Well" the pressman replied, "when he wakes up, tell him he isn't President any longer". Overnight, as a result of Senator Johnson's efforts, California had gone for Wilson.

Wilson secured re-election with what, until now, was the closest Electoral College vote in this century, 277 votes to 254 for Hughes.

It is worth pausing a moment to recall the historical impact of this tight race. Wilson took the United States into the First World War, asserted its international leadership role, but then failed to get Congressional agreement to continued US involvement in the postwar world. History books are silent on how different things might have been under a President Hughes.

Compare that extremely close 277-254 Electoral College race with what may happen when this year's Florida result is finally confirmed. If Gore wins Florida, but continues to lose New Mexico (as I write Bush is winning there by 17 votes) he will win the presidency by 280 votes to 258.

But if Bush wins Florida, but loses Oregon, where another cliffhanger is still taking place, he will win by 276 votes to 262. Yet that would not be the closest Electoral College breakdown of all time.

Second, are there any precedents for Bush winning in the Electoral College while losing the nationwide popular vote to Gore? It has happened twice before.

In 1876 Rutherford B. Hayes won the Presidency even though he secured a little over 250,000 votes less than his opponent Samuel Tilden. President Hayes won because he secured 185 Electoral College votes to the 184 for Tilden, definitely the closest cliffhanger of all.

A complicating factor was that there were disputes over the returns in Florida (once again) Oregon, Louisiana and South Carolina. The dispute required the intervention of Congress which finally declared Hayes the victor a mere 18 days before he was due to be inaugurated.

Twelve years later, in 1888, the incumbent President Grover Cleveland won nearly 96,000 votes more than his Republican opponent Benjamin Harrison. Harrison became President because he won 233 Electoral College votes to Cleveland's 168.

Four years later Cleveland exacted his revenge -- and became the only President to serve two separate terms -- when he defeated Harrison by roughly the same margin as Harrison had defeated him.

So if Gore eventually loses to Bush while winning around 200,000 votes more than his opponent (out of 100 million votes cast) it will not be unique occurrence. But Americans may be less inclined than they were in the 19th Century to see such a loss as the justified price paid for the nation being a federation of sovereign states.

So third, has there ever been any other time when a close race created a similar situation to that existing today? Several times already this year comparisons have arisen with the epic struggle in 1960 between Vice President Richard Nixon and Senator John F Kennedy. This comparison was never more relevant than this past week.

To put it simply, in 1960, amidst clear (and later compelling) evidence of widespread voter fraud, Richard Nixon came under intense pressure to open the same Pandora's Box of legal questioning and political partisanship that has been opened in 2000.

On election eve, a Kennedy victory was widely assumed. But all night long his early lead of well over a million votes was steadily reduced to under half a million. Kennedy's had a lead in the Electoral College count but even that appeared vulnerable.

Though Nixon did not know the full details at the time, Chicago Mayor Richard Daley was holding back the count in Cook County until the rest of Illinois voted, so that he would know how many votes he had to produce in order to get Illinois into Kennedy's column.

In Cook County the dead often voted for the living. Similarly, in Lyndon Johnson's Texas, several precincts had many more voters than were actually registered. If Texas and Illinois were subtracted from Kennedy's Electoral College count -- well, anything was possible.

In these murky circumstances Nixon refrained from making the traditional concession speech even though he was under intense pressure from the pro-Kennedy media to do just that. He merely went on TV to admit that "if the present voting trends continue" Kennedy would be the next President.

The next morning the voting margins had narrowed, and the stories of fraud had multiplied. Nixon came under intense pressure from the Republican Senator from Illinois Everett Dirksen to demand a recount of the total vote and to NOT make a concession statement.

Crucially, Dirksen reminded Nixon that if he conceded "voting records would be destroyed or otherwise disappear, and a recount would become forever impossible "

Partisan advantage suggested to Nixon that he should take this advice but he was also aware of the national interest. As he put it much later in his Memoirs "We had made a serious mistake in not having taken precautions against such a situation but it was too late now.

"A presidential recount would require up to half a year during which time the legitimacy of Kennedy's election would be in question. The effect could be devastating to America's foreign relations.

"I could not subject the country to such a situation. And what if I demanded a recount and it turned out that despite the voter fraud Kennedy had still won? Charges of "sore loser" would follow me through history and remove any possibility of a future political career.

"After considering these and many other factors, I made my decision and sent Kennedy a telegram conceding the election."

In an earlier book, Six Crises, written closer to the event Nixon indicates what some of those "other factors" were. I quote him again because his words have a strong bearing on the present crisis, as the Florida recount leads to numerous court cases, and as the Republicans threaten to call for recounts in other states where the Gore-Bush difference is very small.

Nixon wrote "If I were to demand a recount, the organization of the new Administration, and the orderly transfer of responsibility from the old to the new might be delayed for months. The situation within the entire Federal Government would be chaotic.

"Those in the old Administration would not know how to act -- or with what clear powers and responsibilities -- and those being appointed to positions in the new Administration would have the same difficulty making any plans.

"The bitterness that would be engendered by such a maneuver would have incalculable and lasting damage throughout the country. And finally I could think of no worse example for nations abroad, especially those who were trying to put free electoral procedures into effect, than that of the United States wrangling over the results of our presidential election and even suggesting that the presidency itself could be stolen by thievery at the ballot box.

"It is difficult enough to get defeated candidates in some of the newly independent countries to abide by the verdict of the electorate. If we could not continue to set a good example in this respect in the United States I could see that there would be open season for shooting at the validity of free elections throughout the world".

It is seldom that history speaks with such a clear and compelling voice. Nixon warns of the dangers that face Gore and Bush if they persist too long on their present course. Those 100 or more high priced lawyers in Florida are still opening Pandora's box.

It is seldom too that history presents such a delicious irony. As Mr William Daley leads the partisan charge on behalf of Al Gore, he must be remembering that his father Mayor Richard Daley led a similar drive for Kennedy 40 years ago.

By the same token, there has never been such a close race as this one, with everything depending on a few hundred votes in one state, and with the two candidates separated by less than 10,000 votes in four other states.

Last week reporting from California I ended by suggesting that "Should this incredibly close election end in this unsatisfactory way, Vice President Gore and Governor Bush will have to demonstrate a greater degree of statesmanship after the election than they have demonstrated during it."

This week I can only add that, before it is too late, Vice President Al Gore and Texas Governor George Bush must act on the assumption that " magnanimity in politics is not seldom the truest wisdom" --- even if it means forsaking their ambition to be President of the United States.