The Longest Night: Polemics and Perspectives on Election 2000

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

reliable and rigorous system than the American system. In 1980 MarieFrance Toinet, a French political scientist specializing in the United States, 69 already noted how dissatisfied the Americans were with their presidential election process, seen by many as an “old badly maintained machine.U +201D She quoted several critical comments denouncing the fact that the result of the election of the president of the United States “is the effect of chance, money, advertising and luck.” 70 Neither chance nor luck should come into play in France, where the presidential election system claims to be perfectly under control from the beginning to the end of the electoral process.

Even so, this system is not wholly protected from unpredictable events like those involved in the U.S. Supreme Court decision in Bush v. Gore. The paradox is that the Constitutional Council is at even greater risk than the U.S. Supreme Court, which apparently did not actually have to rule directly on the election itself but could have left it to Congress. In France, this would not be possible. The Constitutional Council is bound by the Constitution to have the last word. If it has doubts as to the results, it must consider every possible and every conceivable legal argument and then come to a final decision. The principles of electoral law in this situation should prompt it to annul the election. But can one ever know in advance what a supreme or constitutional court will decide to do in a given political configuration? “I never promised you a rose garden. I never promised you a perfect justice, ” wrote the American author Hannah Green. All we can hope is that an electoral court that is forced to intervene directly in such a political process (a situation that the Constitutional Council has not experienced since it was established) will above all resist the temptation of politicization.


NOTES
1
France, a unitary state, comprises three territorial levels of administration: the commune, whose decision-making body is the municipal council chaired by the mayor; the department, whose decision-making body is the general council; and the region, whose decision-making body is the regional council. All these territorial bodies are elected by direct universal suffrage.
2
Article 15 of the Declaration of Human and Civic Rights of 1789, which is part of the “corpus of constitutional law” in France, provides expressly that “Society has the right to ask a public official to give an account of his administration.”
3
Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
4
See in particular Decision 89–271 of January 11, 1990, on the law concerning the limitation of electoral expenditure and the clarification of the financing of the political activities, Recueil, 21.
5
See Noëlle Lenoir, “Parity in France, or Increasing Women's Electoral Representation, U +201D International and Comparative Law Quarterly, April 18, 2001.

-311-

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