The most incendiary issue any democratic system can confront might well be the selection of its chief executive when election results are disputed, obscure, and sharply divided. If we consider this issue from the perspective of democratic institutional design, we should anticipate that such situations are likely to arise eventually in any long-running democracy. In America, we have had disputed elections to the Senate and House regularly throughout our history and, on occasion, though not in the peculiar form of the 2000 election, for the presidency. From an ex ante perspective, then, we might ask what institutional structures and legal frameworks we ought to put in place, in advance of this charged moment, that are most likely to produce the most widely acceptable resolution to this potentially most explosive question. But we also now live in an ex post world, for this moment has happened and we are asked to look back and evaluate it: we have watched the American system struggle with this issue and generate a result whose merits—by which I mean whose public acceptance—will be disputed, as the essays in this volume demonstrate, for years to come. In this brief essay, I want to compare an ex ante perspective on disputed presidential elections with the actual institutional arrangements and legal structures that were in place and deployed to resolve, at least formally, the disputed 2000 presidential election. My aim is not so much to praise or condemn the Supreme Court's resolution. Instead, I want to provide perspective, and, I hope, illumination, on both the general nature of the issue and the specific institutional and legal reasons so much controversy concerning that resolution was and remains inevitable.
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Publication information: Book title: The Longest Night: Polemics and Perspectives on Election 2000. Contributors: Arthur J. Jacobson - Editor, Michel Rosenfeld - Editor. Publisher: University of California Press. Place of publication: Berkeley, CA. Publication year: 2002. Page number: 69.
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