The Nation Covers Electoral Reform

Published December 4th 2000 in The Nation
The Nation Covers Electoral Reform

In the wake of the Florida fiasco, The Nation Magazine ran four articles on electoral reform on December 4.

    * CVD advisory board member, Lani Guinier, writes, "Making Every Vote Count"
    * William Greider on "Nation Stupefied Democracy"
    * Christopher Hitchens on "What Crisis?"
    * Political scientist Ted Lowi urges "Deregulate the Duopoly"

Making Every Vote Count


For years many of us have called for a national conversation about what it means to be a multiracial democracy. We have enumerated the glaring flaws inherent in our winner-take-all form of voting, which has produced a steady decline in voter participation, underrepresentation of racial minorities in office, lack of meaningful competition and choice in most elections, and the general failure of politics to mobilize, inform and inspire half the eligible electorate. But nothing changed. Democracy was an asterisk in political debate, typically encompassed in a vague reference to "campaign finance reform." Enter Florida.

The fiasco there provides a rare opportunity to rethink and improve our voting practices in a way that reflects our professed desire to have "every vote count." This conversation has already begun, as several highly educated communities in Palm Beach experienced the same sense of systematic disfranchisement that beset the area's poorer and less-educated communities of color. "It felt like Birmingham last night," Mari Castellanos, a Latina activist in Miami, wrote in an e-mail describing a mammoth rally at the 14,000-member New Birth Baptist Church, a primarily African-American congregation in Miami. "The sanctuary was standing room only. So were the overflow rooms and the school hall, where congregants connected via large TV screens. The people sang and prayed and listened. Story after story was told of voters being turned away at the polls, of ballots being destroyed, of NAACP election literature being discarded at the main post office, of Spanish-speaking poll workers being sent to Creole precincts and vice-versa.... Union leaders, civil rights activists, Black elected officials, ministers, rabbis and an incredibly passionate and inspiring Marlene Bastiene--president of the Haitian women's organization--spoke for two or three minutes each, reminding the assembly of the price their communities had paid for the right to vote and vowing not to be disfranchised ever again."

We must not let this once-in-a-generation moment pass without addressing the basic questions these impassioned citizens are raising: Who votes, how do they vote, whom do they vote for, how are their votes counted and what happens after the voting? These questions go to the very legitimacy of our democratic procedures, not just in Florida but nationwide--and the answers could lead to profound but eminently achievable reforms.

ß Who votes--and doesn't? As with the rest of the nation, in Florida only about half of all adults vote, about the same as the national average. Even more disturbing, nonvoters are increasingly low-income, young and less educated. This trend persists despite the Voting Rights Act, which since 1970 has banned literacy tests nationwide as prerequisites for voting--a ban enacted by Congress and unanimously upheld by the Supreme Court.

We are a democracy that supposedly believes in universal suffrage, and yet the differential turnout between high-income and low-income voters is far greater than in Europe, where it ranges from 5 to 10 percent. More than two-thirds of people in America with incomes greater than $50,000 vote, compared with one-third of those with incomes under $10,000. Those convicted of a felony are permanently banned from voting in Florida and twelve other states. In Florida alone, this year more than 400,000 ex-felons, about half of them black, were denied the opportunity to vote. Canada, on the other hand, takes special steps to register former prisoners and bring them into full citizenship.

ß How do they vote? Florida now abounds with stories of long poll lines, confusing ballots and strict limitations on how long voters could spend in the voting booth. The shocking number of invalid ballots--more ballots were "spoiled" in the presidential race than were cast for "spoiler" Ralph Nader--are a direct result of antiquated voting mechanics that would shame any nation, let alone one of the world's oldest democracies. Even the better-educated older voters of Palm Beach found, to their surprise, how much they had in common with more frequently disfranchised populations. Given how many decisions voters are expected to make in less than five minutes in the polling booth, it is common sense that the polls should be open over a weekend, or at least for twenty-four hours, and that Election Day should be a national holiday. By highlighting our wretched record on voting practices, Florida raises the obvious question: Do we really want large voter participation?

ß Whom do they vote for? Obviously, Florida voters chose among Al Gore, George Bush and a handful of minor-party candidates who, given their status as unlikely to win, were generally ignored and at best chastised as spoilers. But as many voters are now realizing, in the presidential race they were voting not for the candidates whose name they selected (or attempted to select) but for "electors" to that opaque institution, the Electoral College. Our constitutional framers did some things well--chiefly dulling the edge of winner-take-all elections through institutions that demand coalition-building, compromise and recognition of certain minority voices--but the Electoral College was created on illegitimate grounds and has no place in a modern democracy.

As Yale law professor Akhil Reed Amar argues, the Electoral College was established as a device to boost the power of Southern states in the election of the President. The same "compromise" that gave Southern states more House members by counting slaves as three-fifths of a person for purposes of apportioning representation (while giving them none of the privileges of citizenship) gave those states Electoral College votes in proportion to their Congressional delegation. This hypocrisy enhanced the Southern states' Electoral College percentage, and as a result, Virginia slaveowners controlled the presidency for thirty-two of our first thirty-six years.

Its immoral origins notwithstanding, the Electoral College was soon justified as a deliberative body that would choose among several candidates and assure the voice of small geographic areas. But under the Electoral College, voters in small states have more than just a voice; indeed their say often exceeds that of voters in big states. In Wyoming one vote in the Electoral College corresponds to 71,000 voters; in Florida, one electoral vote corresponds to 238,000 voters. At minimum we should eliminate the extra bias that adding electors for each of two senators gives our smallest states. As Robert Naiman of the Center for Economic and Policy Research reports, allowing each state only as many electors as it has members in the House of Representatives would mean, for example, that even if Bush won Oregon and Florida, he would have 216 and Gore would have 220 electoral votes.

Today its backers still argue that the Electoral College is necessary to insure that small states are not ignored by the presidential candidates. Yet the many states--including small ones--that weren't close in this election were neglected by both campaigns. Some of the nation's biggest states, with the most people of color, saw very little presidential campaigning and get-out-the-vote activity. Given their lopsided results this year, we can expect California, Illinois, New York, Texas and nearly all Southern states to be shunned in the 2004 campaign.

ß How are their votes counted? The presidency rests on a handful of votes in Florida because allocation of electoral votes is winner-take-all--if Gore wins by ten votes out of 6 million, he will win 100 percent of the state's twenty-five electoral votes. The ballots cast for a losing candidate are always "invalid" for the purposes of representation; only those cast for the winner actually "count." Thus winner-take-all elections underrepresent the voice of the minority and exaggerate the power of one state's razor-thin majority. Winner-take-all is the great barrier to representation of political and racial minorities at both the federal and the state level. No blacks or Latinos serve in the US Senate or in any governor's mansion. Third-party candidates did not win a single state legislature race except for a handful in Vermont.

Given the national questioning of the Electoral College sparked by the anomalous gap between the popular vote and the college's vote in the presidential election, those committed to real representative democracy now have a chance to shine a spotlight on the glaring flaws and disfranchisement inherent in winner-take-all practices and to propose important reforms.

What we need are election rules that encourage voter turnout rather than suppress it. A system of proportional representation--which would allocate seats to parties based on their proportion of the total vote--would more fairly reflect intense feeling within the electorate, mobilize more people to participate and even encourage those who do participate to do so beyond just the single act of voting on Election Day. Most democracies around the world have some form of proportional voting and manage to engage a much greater percentage of their citizens in elections. Proportional representation in South Africa, for example, allows the white Afrikaner parties and the ANC to gain seats in the national legislature commensurate with the total number of votes cast for each party. Under this system, third parties are a plausible alternative. Moreover, to allow third parties to run presidential candidates without being "spoilers," some advocate instant-runoff elections in which voters would rank their choices for President. That way, even voters whose top choice loses the election could influence the race among the other candidates.

Winner-take-all elections, by contrast, encourage the two major parties to concentrate primarily on the "undecideds" and to take tens of millions of dollars of corporate and special-interest contributions to broadcast ads on the public airwaves appealing to the center of the political spectrum. Winner-take-all incentives discourage either of the two major parties from trying to learn, through organizing and door-knocking, how to mobilize the vast numbers of disengaged poor and working-class voters. Rather than develop a vision, they produce a product and fail to build political capacity from the ground up.

ß What happens after the voting? Our nation is more focused on elections now than it has been for decades; yet on any given Sunday, more people will watch professional football than voted this November. What democracy demands is a system of elections that enables minor parties to gain a voice in the legislature and encourages the development of local political organizations that educate and mobilize voters.

Between elections, grassroots organizations could play an important monitoring role now unfulfilled by the two major parties. If the Bush campaign is right that large numbers of ballots using the same butterfly format were thrown out in previous elections in Palm Beach, then something is wrong with more than the ballot. For those Democratic senior citizens in Palm Beach, it was not enough that their election supervisor was a Democrat. They needed a vibrant local organization that could have served as a watchdog, alerting voters and election officials that there were problems with the ballot. No one should inadvertently vote for two candidates; the same watchdog organizations should require ballot-counting machines like those in some states that notify the voter of such problems before he or she leaves the booth. Voters should be asked, as on the popular TV quiz show, "Is that your final answer?" And surely we cannot claim to be a functioning democracy when voters are turned away from the polls or denied assistance in violation of both state and federal law.

Before the lessons of Florida are forgotten, let us use this window of opportunity to forge a strong pro-democracy coalition to rally around "one vote, one value." The value of a vote depends on its being fairly counted but also on its counting toward the election of the person the voter chose as her representative. This can happen only if we recognize the excesses of winner-take-all voting and stop exaggerating the power of the winner by denying the loser any voice at all.

ACKNOWLEDGMENT Rob Richie of the Center for Voting and Democracy ( provided invaluable assistance in the preparation of this essay.

Nation Stupefied Democracy


Let the wild rumpus continue. Let citizens fill the public square with their dismay and rage. May the angry voters demand deeper explanations for the unrepresentative political system, beyond the obvious questions about trashed ballots or which suit was actually elected. Who knows, if this unruly interregnum continues for a while, it might even light the fuse for a spontaneous "democracy movement," American style. No need to bomb television transmitters or torch the Capitol; this is not Eastern Europe. But it will be very healthy for the country if people are awakened to make loud noises about their decayed democracy. A rare, perhaps brief moment of anarchy--when the authorities seem to have lost control of events--nourishes an insurgent temperament.

OK, maybe people will sit at home and watch it on television. Even that's educational and sure to agitate their passive acceptance of civic mythologies. Americans, remember, spent a full year glued to their TV sets for sordid details from the O.J. Simpson murder trial. They learned a lot about the legal system (also race, sex and violence) and were deeply disturbed. Then the impeachment circus taught the Constitution and revealed the sleazy depths of partisanship run amok. This time, the details seem less juicy, but the lessons are about the shriveled meaning of citizenship. As esteemed establishment characters pressure the politicians to put the genie back in the bottle, it reminds one that some of these same folks urged Bill Clinton to resign rather than put the nation through the supposed trauma of impeachment. As the media chorus demands a speedy exit from crisis, the first public-opinion polls indicate that most Americans want fairness before haste. Movers and shakers should all breathe deeply and relax. The Republic has endured much worse than this.

The establishment's laments reveal a cynical disregard for the will of ordinary citizens (also for Americans' essential sense of equity, not to mention maturity). What frightens the big hitters is a recognition that like the O.J. verdict or the impeachment trial, there can be no satisfactory ending for this story. Whoever wins, half the voting electorate is likely to go home feeling cheated. The other half of the nation--all those alienated Americans who decline to vote--may feel their suspicions about politics confirmed.

The high-minded senator from New York, Daniel Patrick Moynihan, spoke for the established order when he assured the Washington Post: "It doesn't so much matter who wins. The important thing is the legitimacy of the system." If it doesn't matter, why did the two parties and their money patrons spend $3 billion to win their races? Legitimacy is indeed at risk, though perhaps not in the way Moynihan means. For several decades, as some of us have written, the US political system has been sliding toward a loss of legitimacy--the point when most people no longer believe in its writ, never mind the rhetoric that most Americans stopped believing long ago. If an insipid, evasive presidential campaign followed by electoral deadlock is the triggering crisis, that will be perversely fitting. Because this crisis was induced by the entrenched system itself, and it is about power--its power to govern over others. The boiling subtext is the illegitimacy of how some people and interests acquire the governing power and hold on to it, year after year, regardless of the citizenry and its discontents.

In this fractious moment, let us pause to talk also about small-d democracy, what happened to it and how we might revive its original promise. In their perennial search for the holy center, both major parties have re-engineered themselves into empty vessels, as Election 2000 vividly demonstrated. Despite partisan furies, it was not their ideological differences that produced stalemate but their need for overlapping sameness. Contemporary electoral politics essentially apes commercial marketing and advertising (though political ads are generally less entertaining), in which product differentiation depends upon a few selected highlights (character, hot-button issues, patriotic fantasies) that are culled from research into the unexpressed fears and feelings of consumers. Toothpaste and cars, Al Gore and George Bush--the selling process is identical. This year, despite the focus groups and demographic polling, the fantasy images for Gore-Bush were especially weak. Ronald Reagan, remember, was a cowboy riding in from the West to save the Republic and was wildly popular, at least until people figured out his real program. The other central quality of modern politics is that the actual governing agenda is not much discussed, because it will be greatly different from the campaign sales pitch. Bill Clinton executed a bold reversal, but so did George ("read my lips") Bush Sr. and, in many respects, even the straight-talking cowboy. Many voters, maybe most of them, understand artful deception is under way but accede to it (just as consumers know the toothpaste will not make them movie-star handsome, but it's an appealing notion). For many of the nonvoters, the weak illusions of politics no longer convince or entertain, so they switch channels to baseball or old movies.

Political communication, in short, is no longer about actually communicating--listening, teaching, mobilizing, engaging people in real content and a coherent narrative about the larger social and economic realities. The three presidential debates were so painful to watch because both nominees--poor Bush, poor Gore--labored clumsily to stay "on message" and not mess up with an unscripted burst of human expression (they more or less succeeded). The emptiness was most poignantly revealed in the televised chat sessions afterward with those precious "undecided" voters at the "center." These people didn't have a clue but gamely tried to mimick what they had heard they should think about politics. "I am a mother so I care about guns and education." On the General Electric channel, the addlebrained sessions were conducted by Frank Luntz, the young pollster who made his Washington reputation by poll-testing every word and phrase in Newt Gingrich's famous "Contract With America." The nutty agenda eventually blew up, but hey, it won the '94 landslide for House Republicans. Luntz was on TV again after this election informing us that Americans want quick closure to the crisis, though he offered no scientific data to support his claim.

The marketing culture has swallowed not just parties, politicians and voters but also a vast array of mediating institutions, from TV and newspapers to most organizations that ostensibly speak to and for their members. Every major outfit does focus groups and polling now--it's less time-consuming than talking with their members. In most places, the political parties no longer exist as authentic connecting strands with ordinary people on the governing issues or anything else. They are letterheads and mail drops for the political money. The consolidated big media, more homogenized and distant from their audiences, have a stake in making politics seem lifelike, but savvy political reporters essentially cover politics as a story of marketing competition. They report endlessly on how subgroups of voters have been sliced and diced, which words and images induce which voters to embrace which "messages." This kind of politics is very expensive (and boring), so the press also keeps tabs on fundraising as an indicator of who's ahead. Because the human-scale fun has gone out of politics, the media compete by being first--that is, reporting the story before it happens, as they did more than once on election night.

Given the atrophied condition of democratic relationships and institutions, it shouldn't surprise us that the voting electorate has been slowly, steadily shrinking over the past three decades. Some of the explanations did not originate in politics. We no longer join bowling teams, as Harvard professor Robert Putnam claimed, and retreat from joining anything. TV rotted the brains of our young or wiped out the old ward heelers who knocked on doors and talked with real people. The white working class moved to the suburbs, and Democrats lost their addresses. These weakening forces and others did contribute to the decay, but academic explanations tend to leave out the core cause: the politicians and how they handle the governing issues that matter to people the most. As voter turnout has declined, the ranks of active voters became more skewed away from the people of lower incomes and less influence, more top-heavy with the affluent and well-educated class of citizens. As David Broder reported postelection in the Washington Post, families below $50,000 in income fell from 63 percent of the electorate in 1994 to 47 percent this year, though they are by far the majority of families, since the median household income is around $40,000.

Government has reliably responded to this shift in voting power over the years in many injurious ways. Taxation, for instance, was reduced on capital and increased on labor. Public spending on the government services and institutions most needed by nonaffluent families has been shrunk. These and other pivotal matters usually go unmentioned in presidential campaigns, since both major parties have participated in the decisions.

Yet stupefied democracy works--or did until this year. It works, at least, for those who finance our two major parties, their candidates and campaigns. Low-turnout elections actually make life safer for incumbents. In 2000, after a supposedly intense fight for the House, no more than eight incumbents lost seats. Three-fourths of the 435 representatives won in a walk, with margins of 20 percent or more, and another fifty-six members won by more than 10 percent, according to the Center for Voting and Democracy. Thus, only about 10 percent of the House members faced a serious contest. Gore and Bush, meanwhile, each won support from only 24 percent of voting-age adults, with a whisker more for Gore. This they describe as "legitimacy."

People do rebel. Having lost their voice in representative democracy, citizens are not totally inert, though they often charge off in opposite directions. The intensity of single-issue causes, from guns to school prayer, is heightened, I suspect, by the impotence people feel on the larger matters. Certainly, the hostility toward government, especially in Washington, is stimulated by the accurate perception of who gets heard and who doesn't. The more threatening rebellions take the form of eccentric new political parties, challenging establishment power from left and right. Most of them remain hopelessly marginal, but the fact that so many people keep trying is an authentic measure of idealistic discontent.

In 1992 Ross Perot got 19 percent of the vote, enough to deprive the GOP of several states but not decisive in electing Clinton. This year Ralph Nader got far fewer votes, around 3 percent, but there's a much stronger case that he did deprive Gore of a victory (Greens may yet be blamed for defeating one or two Democrats in close House races; Libertarians are accused of threatening Washington's GOP Senator Slade Gorton). Most notably, former wrestler Jesse Ventura became Minnesota governor by beating both parties. The crucial point is that Perot had money and media access and Nader didn't. Big-media producers and editors probably felt a little guilty about falling in love with the goofy Perot and giving him so much airtime and ink--did they create this monster?--so they were determined not to make the same mistake with Nader. Ventura had both celebrity and the public financing to buy TV visibility, but was also included in the debates and demonstrated he was not a nut case. Those conditions describe the present fragility of the two-party system: Any plausible outsider who acquires money, media access or debate presence can conceivably upend the status quo.

Democrats right now are bruised and bitter about the Nader intrusion, and many have convinced themselves that this threat has been permanently disabled by the outrage currently directed at Nader and the Greens. I think they are mistaken about that and fail to appreciate the depths of distrust not just of the political system but of the Democratic Party, especially among motivated young people. This past summer they were ignored or ridiculed by the media and the Gore juggernaut. By October they were scolded and told, condescendingly, to go home. In November, they were accused of deadlocking a presidential election. "Students made an investment with their vote, and it's empowering for students to see how much their votes matter," said Alex Zwerdling, 22-year-old national campus coordinator for Nader.

A central question burdens the Democratic Party for the long term, beyond Gore's fate or the large policy issues. How does the party really feel about reviving small-d democracy? The party and many of its progressive constituencies are now quite adept at doing the money and marketing version of democracy--it works for them. They will endeavor to regain majority control and then--maybe--pursue some reforms like campaign financing. But the unruly young insurgents are unlikely to cooperate with that timetable, since they identify corporate power as the central source of what's undermining democracy. As the Greens or others keep attacking from the flanks, Democrats may find themselves shoulder to shoulder with loathed Republican colleagues, defending the system's legitimacy. If a genuine democracy movement does spring to life, would the regulars and institutions of the Democratic Party try to lead it or smash it?

Democracy, I'm suggesting, has deeper maladies than stupid slogans or the corrupting influence of big money. It will not be revived by an act of Congress or a presidential order, even if the power of private money is contained. We are stuck with profound popular disconnections in this mass-media age that can only be healed gradually, patiently, by devoting resources and attention to the atrophied connective tissues of society itself. That requires on-the-ground action--the hard work of talking and listening, re-earning loyalty and trust among ordinary people. It's natural for the parties and allied constituencies to devote their energies to battles of the moment, but we may be approaching a time when they have no choice but to change--or else face further deterioration in their own power and legitimacy. Labor this year demonstrated the electoral payoff of connecting face to face with confused and alienated voters. Instead of dumping so many millions on campaign ads, labor and other progressive groups should spend more money on face time with real people between elections.

In the meantime, a small-d agenda of reform laws could begin to ventilate our politics:

ß Instant-runoff voting will allow dissidents to participate but also spur the two major parties to campaign for second-choice votes, which are counted if neither major-party candidate wins a majority. That reform sets the stage for enriched representation.

ß Campaign finance reform will not accomplish much unless it includes at least a modified version of public financing for challengers and engenders political dialogue beyond the usual propaganda. Conservatives insist on solving our public problems with more competition--that's exactly what our democracy needs. ß Media access and candidate debates open to all contenders ought to be high on the reform list, especially given the imperious disdain and flagrant errors of the big media this year. Why are these clowns allowed to define politics for us? This country now has hundreds of available channels, and, given the huge subsidies media moguls have received in the form of free public property (the airwaves), it is time to pursue Ralph Nader's proposal for audience channels--the right for political parties, churches, labor unions and civic groups of every stripe to get scheduled chunks of airtime to communicate with whoever wishes to watch and listen. Congress can start by blowing up the corporate-sponsored debates commission and mandating free radio and TV airtime for future candidates and campaigns.

As these ideas suggest, American politics will have to get a lot noisier--with many eccentric new voices chiming in--before it can hope to regain the confidence of the people or become more stable, less fractious. Most leaders in both major parties will no doubt see the risks in these proposals but not the opportunities for themselves or the country. If so, the insurgent temperament will have to bang away at the system until regular politicians grasp that a genuine democracy may actually be in their interest too.

What Crisis?


There's an easy way to take your own pulse, and that of anyone you know, concerning the vertiginous events of the night of November 7. Was the apparent non-outcome really a "mess" or a crisis? Or was the pre-existing system a sordid mess and a crisis waiting to happen? If you choose the second explanation, then the meltdown of all the fixers and self-appointed gatekeepers and pseudo-experts, as well as being a source of joy, is also an unparalleled opportunity, an occasion for a long-postponed national seminar on democracy and how to get it.

At the very beginning of the election season, when it was already obvious that the soft-money forces had decided they had everything wrapped up, I wrote a column calling for international monitors and observers to come and certify whether this "process" could be described as free and fair ["Our Rigged Elections," November 15, 1999]. I specifically cited the untrustworthiness of computerized voting machines, the limiting of ballot access, the disfranchisement of those with felony convictions, the role of bribery in the selection of mainstream nominees and the denial of access to the media for alternative parties or viewpoints. I also mentioned the Electoral College racket. This whole undemocratic shambles is now, if we are lucky and also voluble, discredited beyond any chance of repair.

Look what Gore and Lieberman did, in "normal" conditions, to try and win Florida. The Vice President sided with fanatics and kidnappers in the Elián González affair and encouraged local and state officials to defy the federal courts. Senator Lieberman, a week or so before the vote, went to collect some dough from the Cuban-American National Foundation and then laid a wreath on the grave of Jorge Mas Canosa, one of Miami's most notorious mobsters. Meanwhile, an appalling number of adults--disproportionately African-American--are deprived of the vote because Florida disfranchises those guilty of nonviolent narcotics offenses. And earlier challenges to the tampering with computerized voting machines were stonewalled by the local DA--one Janet Reno. These banana-republic conditions were all shrugged off as irrelevant by most Democrats and many liberals, because the main thing was to "get out the vote" for Gore, and the only alternative was Bush. But the fools, the fools, the fools... they reckoned without about 95,000 free and independent-minded Floridians who voted for Ralph Nader. And as a result, Gore and Bush have both lost, and have both been exposed as the ciphers that they are, and if we are lucky there will never be an "election" like this one--a $3 billion disinformation campaign--ever again.

It has been disgusting to see and hear the thuggish remarks made by those who were quite content with that "normal" status quo, and who vilify Ralph Nader for doing exactly what a radical is supposed to do, namely, challenge the assumptions of the system. The authoritarian intolerance of some Democratic hacks has been insufferable. Pat Buchanan with his likely 1 percent was just as capable of inconveniencing the GOP in a close contest, but I did not read one conservative or Republican call for his withdrawal, let alone any attacks on his right to run. A few liberal dolts have been going around saying in an ominous manner that they "won't forget" what Nader did; well, guess what? Some of us won't be forgetting the Stalinist mentality of those same dolts, either.

Nader can't be blamed for the Democrats' wretched lack of success in Congressional races (or, of course, he would be), but at least we can look forward to a delicious period of stalemate on the Hill. The interval should be employed in pouring through the door that Nader has forced open. The Electoral College system should be scrapped, even if Mrs. Clinton does suddenly say so. The Oregon system of voting by mail should be adopted, allowing for a transparent "count" and also demolishing the unelected and arrogant exit-pollsters. Restrictions on ballot access for third parties should be removed. The presidential debates "commission" will probably be destroyed by Nader's pending lawsuit, but corporate sponsorship of party conventions should likewise be confronted and done away with. Soft-money crooks should be prosecuted and jailed. Poll-tax type restrictions on the franchise should be challenged state by state. The institution of runoff voting, already advocated by many Greens and others, would undermine the already rotten two-party duopoly and remove the grotesque arrangement whereby a third-party vote can "objectively" only benefit the individual voter's least-desired candidate.

It wasn't just the ballot-deprived ex-felons who were in a "prisoner's dilemma" all this year. Every thinking person was told, day in and day out, that any independent exercise of the mind or the imagination, let alone of the franchise, would lead to the worst possible result. The New York Times in three bilious editorials even inverted the customary Voltairean cliché, disagreeing not so much with what Nader said as with his right to say it. Consensus criticized became consensus hysterical.

As the complacent victor in the cold war, the United States managed to avoid its own period of glasnost and perestroika. The opportunity to inaugurate such a moment now presents itself. But even this chance would have been hopelessly missed if a few hundred thousand electors had not decided to ignore or defy the routine, dogmatic propaganda of lesser-evilism, that lifeless, brainless mantra of an expired system. As I write, we may yet be looking at President Bush, who failed his first test of statesmanship--peevish, rattled, spoiled, inarticulate and stupid-looking--even before he started. His rival--don't let's even start on his rival. Both these failed salesmen believe in a government of lawyers, not men. But now they, the shoddy product of their anonymous backers and donors, look like the exhausted, broken puppets that they always were. If they were not such pygmies, we would be justified in calling Ralph Nader a giant-slayer. It's now up to us to insure citizenship and self-government, where neither pygmies nor giants will be necessary.

Deregulate the Duopoly


As rain dances used to serve certain primitive tribes and scripture still serves true believers, the two-party system serves as the religion of the political class. Never mind that more than 50 percent of Americans may not share the civic religion, answering yes to pollsters when asked if they would prefer more than two choices (and that includes many regular voters as well as the bulk of habitual nonvoters). Nevertheless, every new party that has ever tried to establish itself has been treated by the political priesthood as a blasphemer--an evil force that inevitably contributes to the disastrous victory of the more detested of the two major candidates. Perot elected Clinton. Nader elects Bush.

The real culprit in the current election imbroglio is the two-party system itself and the state laws supporting it. These laws exist to discourage new parties. Florida has come in for special attention because of the current crisis, but Florida is typical among states. The beautiful irony is that the laws written to discourage third parties have proved to be a double-edged sword, cutting for the moment against those responsible for the existence of those laws.

Consider first how the laws work against all new parties. It is not Providence that takes an energetic social movement and crushes it as soon as it chooses to advance its goals through elections. It is the laws of the state here on earth that keep the party system on life support by preferring two parties above all others. The key example will be found in the laws of the states and Congress that mandate the single-member district system of representation plus the plurality or first-past-the-post method of election. Another historic example is provided by the "antifusion" laws in all but a half-dozen states, which prohibit joint nomination, whereby a third party seeks to nominate for its ticket the candidate already nominated by one of the major parties. Even the Supreme Court has approved such laws with the argument that having the same name in two places on the ballot would confuse the poor, defenseless voters.

Add to all this the new gerrymandering. Traditional gerrymandering was at least a genuine struggle between the majority parties to dilute the vote power of the other party by concentrating a maximum of their voters into a minimum of districts. The new method takes advantage of the Voting Rights Act by benign race-conscious gerrymandering in order to keep minorities within one of the major parties. In practice, blacks are guaranteed one or more additional Congressional or state legislature seats within the Democratic Party, while Republicans gain strength in districts from which the minority voters are evacuated.

Then there are the countless state laws that prescribe higher thresholds for the number of correct signatures required on third-party nominating petitions than for regulars on two-party ballots. Even the laws that apply equally to all parties are discriminatory, because they are written in such detail that ballot access for third-party candidates requires expensive legal assistance just to get through the morass of procedures. That mind-numbing detail is doubly discriminatory because the implementation of these laws thrusts tremendous discretion into the hands of the registrars, commissioners and election boards, all staffed by political careeristas of the two major parties, whose bipartisan presence is supposed to provide "neutrality with finality"--but it is common knowledge that they can agree with each other to manipulate the laws for the purpose of discouraging the candidacies of smaller and newer parties.

The same principles help explain why less than 50 percent of the electorate turns out to vote. Most of the blame goes to the forbidding proceduralism of registration, enrollment and eligibility and the discretionary power of local and county officials in implementation. And don't forget the gruesome timing of state election laws that restrict voting to one ordinary workday. The duopoly has a stake in low turnout. Virtually all expansion of the electorate (to include women, 18-year-olds, blacks) and the easing of restrictions on registration (judicial enforcement of the "motor voter" law) have been imposed on the state two-party systems from the outside by national social movements and federal courts.

Now, as poetic justice would have it, this legal structure is cutting the other way. Just look at the havoc it has wreaked: Loused-up ballots. Machine versus manual recounts. A lawyers' field day and the threat of court intervention that could cause a constitutional crisis or take Florida out of the electoral vote altogether. The Florida crunch can happen in any state where the results are extremely close and the outcome can change the national results.

That's because the two constituted parties cooperate well as a duopoly so long as market share is stable, with decisive election results. But whenever there is an extremely close election, the two parties become vicious antagonists, and the high stakes make it profitable for each to use its control of the electoral machinery as a weapon of mass destruction against the other. No war is more destructive than a civil war, and ordinarily the two parties have incentives to keep civil war from happening. Civil war in 2000 has broken out because two-party competition has turned from a public good to a public evil. The two-party system has at the moment become a menace to the Republic, made worse by the overwhelming weakness of the parties' presidential candidates and the impossibility of choosing between them when the only way to vote no for the candidate you hate is to vote yes for the one you can barely tolerate. And forget about having a good option when you hate both equally.

With Nader in the race, a lot of things got said that otherwise wouldn't have--no matter that the leading candidates excommunicated him. Making issues out of nonissues is what third parties are about, but those issues obviously did not create the stalemate we now confront. Stalemate is putting the case too mildly; mutual assassination is more like it. The crisis will not end with a certified recount in Florida. The civil war will continue, and the two parties will give us competition literally with a vengeance. Forget about smooth transitions. The FBI won't be ready with its security checks of top appointees, and the Senate will look at them with far greater than average scrutiny, even if the President's party is in the majority, because the Senate is run by sixty antifilibuster votes, not by mere majorities. That will apply in spades to judicial vacancies. Get ready for a Supreme Court of eight, seven, even six members, because as the vacancies occur, there'll be a majority against any nominee, even ones as mushy and fuzzy as President Bush or Gore will nominate. (The Constitution does not require any particular number of Justices on the Supreme Court.)

No exit? We have to turn the civic religion on its head and lionize the principle of a multiparty system, because its presence on a regular and expanded basis would relieve the two major parties of the need to be all things to everyone in order to get their phony majorities. We don't do that by inviting third parties to join the major parties on legal life support--as government-sponsored agencies. We do it by deregulating our politics. Hey, guys, deregulation. If you really meant it all these years, you Republicans and you Democrats, then be honest and deregulate yourselves. Take away the two-party safety net, by legislation and better yet by judicial review, and the democratic revolution can begin.