The Longest Night: Polemics and Perspectives on Election 2000

By Arthur J. Jacobson; Michel Rosenfeld | Go to book overview

amendment would bring could be achieved at once without one or while one is pending. One gain I described—a twenty-four-hour election day ending simultaneously across the country—could be adopted by Congress now, because the Constitution assigns it authority to fix the time of presidential elections. More could be achieved through a model uniform election code that Congress might endorse and propose to the states, agreeing to finance elections for national office, including providing accurate electronic voting machinery, for those states that adopted that code. The model code would no doubt be adopted in somewhat different form in different states, but Congress could identify core provisions that guaranteed uniform voting machinery and mechanisms of challenge and review, for instance, that could not be changed without forfeiting the benefits Congress offered. There could be no objection under Article II to a state legislature adopting the model code; a legislature would of course be free to repeal the code later, but it would presumably face great political pressure not to do so.

These are extraordinary measures, and many people will be understandably timid about altering a constitutional structure that has been, as a whole, dramatically successful. But the Constitution's original design for elections, rooted in an elitism that is no longer tolerable, has proved its most unsuccessful feature. We have had to amend it before—in 1913, when the power to choose senators was taken away from the state legislatures and given to the people—in order to keep faith with our most basic constitutional conviction, which is that the Constitution creates and protects genuine democracy. We have now witnessed new and frightening challenges to that assumption, culminating in a deeply regrettable Supreme Court decision, and we must again change the Constitution in order to sustain our deep respect for it and for the institutions that guard it.


NOTES
1
For a detailed account of this conservative activism, see Larry Kramer, “No Surprise. It's an Activist Court, ” New York Times, December 12, 2000, A33.
2
Scalia also said that since “it is generally agreed” that further handling of the ballots might degrade them, Bush might suffer irreparable harm if that degradation made a further, more accurate recount impossible. But there is no evidence (only Republican allegations) that a recounting of ballots by judges is likely to injure those ballots, no request by the Bush team for any further recounting, and no real prospect of the Supreme Court ordering one.
3
The New York Times suggested that they agreed in the hope, which failed, of constructing a compromise decision to send the case back to allow the Florida court to set more concrete counting standards. See Linda Greenhouse, “Bush Prevails, ” December 13, 2000, A1.
4
The Florida Supreme Court had adopted the “clear voter intent” standard

-98-

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