By Nayana
At the time of writing this article the outcome of the U.S. Presidential election is not known. However events that have unfolded so far and the legal wrangling that has accompanied them is enough to raise a strong possibility that irrespective of the result there will be a substantial body of American opinion that will not accept the winner as totally legitimate.

The idea of being governed by a President the legitimacy of whose election is questioned by a substantial section of people may not be strange to Sri Lankans who have got used to more than a decade of flawed elections. However it will be a new and disturbing experience for Americans who have grown up with the belief that they have the best democracy in the world.

Nevertheless it appears to an outside observer that many of the seeming flaws that have surfaced at this election are in fact attributable to the character of the American political system but have escaped criticism because they have not previously been a deciding factor in the result.

The system of indirect election of the President through an Electoral College comprising electors from the 50 states is said to have been devised in order to make every state count in the electoral process. If candidates had only to seek a bare majority of the popular vote, they could do so without even bothering to campaign in some of the smaller or less populated states.

However this holds good more in theory than in practice owing to the vast variation in the number of electors that the different states are entitled to send to the Electoral College, e.g. 54 from Califonia, as few as three from some of the smaller states. Since the number of electors that a state is entitled to send depends on the size of its population, one wonders whether anything would have been lost by opting for a direct popular vote.

Distortion

Instead the Electoral College system results in a considerable distortion of the popular vote within each state by the addition of a winner take all policy, i.e. whoever wins a bare majority of the popular vote in each state wins all the electors of that state. This means that the votes of a considerable section of people from each state could end up counting for nothing in the final arithmetic that determines who wins the Presidency.

An outside observer could be forgiven for feeling that the more orthodox system of direct election is fundamentally sounder, despite the flaws that might attend its implementation in some less developed democracies.

Another distinguishing feature of the American system is that the electoral process even for the election of President is governed by state law and can thus vary from one state to another. Such an extreme form of federalism is the legacy of a jealous guarding of rights by the states during the formative years of the Union.

Unfortunately for the American nation, the state that is to decide the Presidency appears to have one of the most lax and potentially controversial electoral systems. In Florida, unlike in many other states, there is not even a prescribed uniform standard for determining the validity of ballots within the state, with each county apparently setting its own rules.

In addition, the Florida State legislature appears to have passed two conflicting laws regarding the count. On the one hand the law allows for the State authorities to set a one week deadline for the counties to submit their election results. On the other hand there is also a provision for manual recounts which, as the Florida Supreme Court acknowledged during its recent hearing on this issue, could well take the counting of votes beyond the one week deadline.

In previous cases involving local and Congressional elections, rulings by the Florida courts have tended not to favour rigid deadlines at the expense of ascertaining voter intentions. However in the case of the Presidential election the court is faced with an added deadline, namely the fact that the State Legislature of Florida has to certify its electors to the Electoral College by December 12.

Thus while manual recounts would allow for the possible inclusion of ballots that were rejected by mechanical counting machines and thus give expression to the wishes of a larger number of voters, a prolonged recounting process that causes Florida to miss the December 12 deadline would have the effect of disenfranchising the whole State.

Florida’s Supreme Court sought to effect a balance between these two competing interests when it directed the State’s election officials to accept recount results up to November 27 morning. However the waters were immediately muddied when Miami-Dade, the largest of the counties where recounting was going on, decided to halt its recount on the ground that it could not be finished by the November 27 deadline anyway.

Manual recounts

The county’s decision was unsuccessfully challenged in the Florida Supreme Court by Vice President Al Gore’s lawyers. At the same time Governor George Bush’s legal team filed an appeal in the U.S. federal Supreme Court against the decision of the state supreme court to allow recounts. They had laid the ground for this appeal by raising, as one of their issues in the Florida Supreme Court, the argument that manual recounts were "unconstitutional". Constitutionality is the only grounds on which they could escape the established principle that election administration was a matter of state law outside the jurisdiction of the federal courts.

In the United States there appears to be a feeling that every fresh legal battle will only serve to weaken the moral authority of whichever candidate is finally declared elected. We in Sri Lanka however should appreciate the manner in which legal disputes are sought to be disposed of expeditiously so that all legal wrangles can be resolved before the final result is declared.

Indeed one of the reasons for the Florida Court setting a November 27 deadline for the recounts was that under Florida law the losing candidate has a right to challenge the election result before it is certified by the State legislature. This process too would have to be completed before the December 12 Electoral College deadline.

The accepted tradition for all legal challenges to be heard and determined before the result is declared and the winning candidate takes office is a salutary measure that gives meaning to the election law.

We in Sri Lanka are all too familiar with the converse situation where the result is declared within days of the count and all allegations of irregularities must then be taken up in election petition case which may take years to be concluded. Meanwhile the victor enjoys the spoils of office regardless of whether his/her victory was by fair means or foul.

Thus, although the Americans may be feeling embarrassed by their system right now, outsiders would do well to take note of its strengths as well as its weaknesses.

Embarrassing errors

One of the flaws of the American approach to most matters, however, is an excess of faith in technology - a firm belief in the superiority of machine over man - that has caused that country to make some embarrassing errors in other fields as well.

The evidence that has come to light in Florida has amply demonstrated the inherent potential for error in mechanized voting and mechanized ballot counting. For instance, we have been told that in the case of mechanically punched ballot papers, the machine does not always punch cleanly, resulting in the so called "dimpled" ballots which are not taken into account by the counting machines. On a manual recount, however, it can be argued that the voter’s intention - always theoretically the paramount factor, even in Florida - is clear on these partially punched ballot papers.

The very fact that Florida law provides for manual recounts seems to be a tacit admission that the mechanical counting process is not always reliable. This was reinforced by the State Supreme Court when it allowed the manual recounts to continue on the basis that "an accurate vote count is one of the essential foundations of our democracy".

It should also be remembered that the seemingly prohibitive length of time taken for the manual recounts in Florida are due to the fact that counting officers are having to decipher mechanically punched ballot papers. As we know from experience in this part of the world, hand counts of hand marked ballots - i.e. the traditional "X" in the appropriate square - do not take nearly so long.

However the most damaging aspect of the U.S. system as practiced in states such as Florida is the provision for two types of counts which can produce significant different results. This is at the heart of the dispute in Florida and there is no way it can be resolved to the equal satisfaction of both parties.

The next major question is whether the Florida State Legislature, presently dominated by Republicans, will invoke a little-used federal law allowing it to unilaterally name electors. Such an action could give George W. Bush the state’s 25 electors and with it the Presidency on the basis that he was the candidate who had won the most votes before the disputed recounts began.

Such a development would underscore the supremacy of the politically elected in the American system. Whereas in most other countries election officials would be neutral, or at least ostensibly neutral public servants, it is well known that Florida’s Secretary of State and chief election officer, Katherine Harris, was the co-chairman of Republican candidate George Bush’s campaign in the State. Similarly, the State Attorney-General Bob Butterworth was Vice President Gore’s campaign chairman.

It is a system under which citizens not only elect the President, congressmen and state governors, but also judges, prosecutors and a host of other officials. Any change to this system that has, for better or worse, prevailed for over 200 years would require a major shift in the way Americans view their democracy.