January 10, 2001
Man with No Mandate
By Sam Parry
Mandate: The wishes of a political electorate, expressed by election results to its representatives in government.
On Sunday, Dec. 31, 2000, The Washington Post reported that President-elect George W. Bush’s transition is “defying predictions” and is proceeding “as if he had won a resounding victory.”
Bush, according the Post, “has determined the best way to establish his legitimacy despite his messy victory is to lead as if he had a mandate.”
Six days later, on Jan. 6, during the joint session of the U.S. House and Senate that officially received and tabulated the final electoral vote count, Democratic representatives, led by the Congressional Black Caucus, rose – again and again – to object to the Florida electoral count.
When no senator joined the House objectors as required by the rules of the joint session, the objections were gaveled down by the outgoing President of the Senate, Vice President Al Gore.
Near the end, Rep. Alcee L. Hastings, D-Fla., turned to Gore and said, "We did all we could." Gore smiled and replied, "The chair thanks the gentleman."
With that last-ditch Black Caucus protest, the legal challenges to Bush's formal election had ended, but the fury felt by many Americans outside the halls of Congress remains palpable.
The question that Bush supporters now must try to get the country to forget is this: What mandate can Bush claim, given the twin realities that he lost the national popular vote by more than a half million votes and almost certainly was runner-up in the key state of Florida?
Bush was awarded Florida’s 25 electoral votes, which gave him one more than the required 270 electoral votes, but he got that total in a manner that will remain a topic of historical debate and controversy for years to come.
As the world knows, the U.S. Supreme Court, in two 5-4 rulings, first halted the manual statewide counting of ballots in Florida that showed Bush's tiny lead dwindling toward zero and then prevented the count's resumption because of alleged inconsistencies in the recount standards. The court further imposed a deadline – two hours after the ruling – that made any adjustments impossible.
A careful reading of the ruling by the court's five most conservative justices as well as the sharply worded dissents make clear that the court was unsure what to do about Florida’s election quandary. Yet, given the well-documented irregularities in Florida, why were the 25 electoral votes given to either candidate?
Considering that Florida’s election laws were created as a single election scheme, it was inconsistent for the court to strike down the election recounting process without striking down the whole system.
One uncharitable explanation, of course, is that the five conservative Republican justices simply were making up legal arguments to guarantee the victory of a conservative Republican.
It was even more troubling to many, particularly in the black community, that the court based its ruling on the "equal protection" clause of the 14th Amendment, enacted after the Civil War to ensure legal rights for African-Americans.
The disparate access to modern voting equipment and polling locations across Florida tended to favor wealthier, predominantly white precincts – with optical scanners – over poorer, disproportionately black precincts – with old-fashioned punch-card systems.
To level the electoral playing field, the Florida election law provided for hand counts especially where old or malfunctioning machines may have erred.
By throwing out only the election law provision for counting these missed votes in the poorer precincts, the U.S. Supreme Court's ruling effectively gave greater weight to votes cast in the wealthier precincts. The court's legal reasoning was thus seen by many blacks as a perversion of the equal protection principle.
Largely lost in the high-stakes political drama of Florida’s vote count also was the final national popular vote tally.
As late absentee ballots across the country were tabulated and added to the vote totals, Gore’s slim election-night popular vote lead swelled to almost 540,000 votes.
Gore's popular vote margin over Bush was more than four-times greater than Kennedy’s over Nixon in 1960 and larger than Nixon’s over Humphrey in 1968. Of all the presidential candidates in history, Gore’s popular vote total was second only to Ronald Reagan’s in 1984.
Not only did Gore defeat Bush one-on-one in the popular vote count, but left-of-center presidential candidates – Gore, Ralph Nader and John Hagelin – defeated right-of-center candidates – Bush, Pat Buchanan, Harry Browne and Howard Phillips – by almost three million votes.