Forget reform, make votes count

For those who stayed up to watch the results stage of the US presidential election in November 2000, the experience was less than immediately satisfying. The American political world turned out to be finely balanced. Almost nothing was resolved quickly.

The final election results for the Senate gave the Democrats and Republicans 50 seats each, while the Republicans retained a majority in the House of Representatives, although this was paper-thin. But while the balances in the legislature were resolved accurately within days of the general election, the presidential election process involved a lengthy coda of public-relations muscle-flexing by political parties and candidate organisations, state administrative and legislative intervention, repeated action in the state and federal courts, and claims and counter-claims of overly partisan interpretation of the law.

Richard Posner's Breaking the Deadlock is a contribution to the extensive literature that is emerging on this most unusual election and its aftermath. Posner's experience as a federal appeals court judge shines through the book, and gives it a different dimension from those many volumes by academics and journalists that form most of the literature of the 2000 election.

Indeed, Posner reserves his deepest criticism for the professors of law who have joined in the election debate, opining that quite apart from not having the professional experience to react to "current events in real time", there is a "leftward drift of the constitutional-law professoriat", and "some professors of constitutional law do not know the constitution... very well".

The elections administration, the state executive, legislature, and courts, the candidate organisations and the federal Supreme Court all became embroiled, and Posner's analysis of each stage and aspect of the post-election saga, and of some of the observers, acknowledges the potential role of the actors' political views, and effectively alerts the reader to assess the book, too, with ideology in mind.

Posner's version of the Florida brawl concentrates on the legal questions. He feels that the lower Florida courts did well, the Florida election officials acted reasonably, and both Gore and Bush camps responded as one would expect, and to an acceptable professional standard. The Florida supreme court, however, failed repeatedly to make correct decisions, and the US Supreme Court (somewhat belatedly and perhaps by the wrong route) made the right decision when it stopped the counts and restored order.

The restoration of order in the face of impending chaos is a central element of Posner's vision of the law, a vision supported by a self-described pragmatic approach. In autumn 2000 no election result that would be any more convincing than that already derived from the count and a machine recount could be expected within the time available. If the time was made available, the scenarios for the presidential succession were untried and potentially bizarre - Posner presents them briskly in a kind of narrative flow diagram of possibilities. While Posner is not convinced by the Supreme Court's use of "equal protection" (a clause, as he points out, generally favoured by the liberal justices rather than those using it this time), he is convinced that the courts have a responsibility to provide pragmatic responses to potential political and constitutional crisis.

The one reform that Posner would like to see emerge from the vicissitudes of the 2000 election would be the adoption of "user-friendly voting technologies that make it easier for peopleI to cast a valid vote". There was much argument over whether some people had voted the way they intended, and some evidence that confusion may have resulted in incorrect voting, unintended spoiling of ballots and possibly undervoting. The evidence suggests to Posner that some electoral technologies are simpler, easier to use and serve to eliminate these errors, and he is convinced that the wholesale adoption of the least error-prone systems will do more to ensure the accountability of America's office holders to all the voters, including the poorly educated and barely literate who "are not well informed about political matters, butI probably have a better idea of, as well as a greater solicitude for, their interests than the rest of the electorate does".

Derek Bok's The Trouble with Government makes the case that America should have more solicitude for its poor and needy, for those who cannot get far away from poverty in spite of working their hardest, and for those who continue not to qualify for health coverage and, in various ways, fall through the complex but incomplete safety net that the nation provides. And while he is approaching his debate from a very different political perspective from that of Posner, he too considers that enabling everyone to vote is of crucial importance.

In a sweeping consideration of the state of politics in contemporary America, Bok acknowledges the great social and economic strides made by the US in recent generations, but finds significant areas of weakness compared with other major nations. In attempting to get to the causes of these policy failures, he finds some interesting apparent contradictions. American citizens feel that government is unresponsive at a time when politicians are doing more than ever before to gauge and react to public opinion. Voters feel that most politicians (though not their own representatives) form a venal, corrupt and ignorant band, when there is no evidence to suggest that corruption has increased, and plenty of evidence that politicians have become better educated and skilled over the years.

The electorate often feels that problems and solutions are simple and straightforward, when politicians and government agencies consider them complex and difficult to address. Policy-making and implementation is complicated by a system designed to separate, check and balance political authority horizontally and vertically. Bok identifies a cycle of failure in which a sense of impotence underpins a withdrawal from political activity, which in turn damages the policy process, the accountability of government and the efficiency and quality of legislative responses.

Bok's examination of the structure and form of US government, and the roles of various players including office holders, the media, political parties and interest groups, makes critical commentary on all of these, and comes up with suggestions for reform. Here, too, there is a pragmatic streak. He feels that the complexity of the American political system, even given its provision of multiple access points, is not an unalloyed benefit.

Yet even while discussing possible changes, he is quick to recognise the implausibility of substantial alterations to a constitution and political system imbued with a theological reverence. Ultimately, Bok perceives the greatest threat to America's future lying in the decline in informed political participation. He would agree with Posner that only when the poor begin to vote will politicians begin consistently to look for opportunities to design policy to their benefit.

In autumn 2000 US citizens were treated to two months of argument before indecision over the next president was brought to a close. Whatever the result, it seemed at the time that the debate at the next election would be, in part, about the validity of the last one. A major constitutional crisis may have been avoided, but trust in government was not on the increase. More than a year since George W. Bush became president, the context has changed dramatically. The arcane workings of the electoral system have for the moment disappeared as a matter for public debate, and public trust in the government and its institutions has increased to the highest levels in recent years. The arguments in these books remain germane, but it remains to be seen whether they can make any impact in the current political climate.

Philip John Davies is professor of American studies, De Montfort University.