Reforms? What kinds

William F. Buckley
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Posted: Dec 06, 2000 12:00 AM
One radio commentator, in the thick of the judicial flurry on Monday, commented icily that some Republicans seemed to be saying that there was no national right to vote in presidential elections, that the logic of the position of Justice Scalia was as simple as that if the legislature of the state of Florida ruled that no one was qualified to vote for president, so would it be. The shorthand for this form of reductionism in argument is: Who says A, must say B. I.e., any man who holds that the legislature is supreme on the question of elections to federal office must commit himself to saying that the legislature is entitled simply to eliminate the presidential ballot.

The most obvious objection to this kind of formal reasoning is that democratic resistance would not permit it. If Tallahassee were to adopt (per impossibile) any such position, what would happen to the people who sit in Tallahassee? Exactly.

The Constitution requires that member states be governed by representative elections. There are congressional enactments that have survived judicial scrutiny that guarantee that states shall not discriminate on the basis of race or sex or ethnic origin. If a state were to restrict the vote in such a way as the commentator imagines, it is quickly predictable that the composition of its legislature would change at the next election, assuming that impeachment proceedings hadn't, in the meantime, gone forward.

But the Florida impasse certainly called for reforms. It should not be arguable, in the future, whether a ballot was correctly accosted by the voter. The day of the ambiguous chad should be over. How to do this?

The problem is only technical in nature. Sen. Torricelli of New Jersey has proposed a $100 million dollar program to devise and distribute voting machines to the states whose operation is unambiguous. The argument could be advanced by legislatures opposed to a federalization of voting procedures that to do such a thing is to overstep the authority of the state legislatures.

Question: Would any state, offered a couple of million dollars with which to buy new machines, turn that money down? If so, why? If there is a parochial motive in reserving the power to the individual legislatures, for what purpose is it intended? Since we rule out that partisan advantages are the motives for retaining old and anachronized ballots, what would be the purpose in declining to participate in the loot of new voting machines?

It is very important, in the current controversy, to re-stress that it is not persuasively charged that any voting precincts in Florida acted as they did on Nov. 7 in order to advance partisan interests. The argument about proffering identification aid to absentee ballots is superficially arresting. True, GOP co-adjutors were here and there present in Seminole County volunteering to give ID's to absentee voters.

But it is not charged that the voters who benefited from this little courtesy were exclusively Republican. If you forget to jot down, in your application, a piece of information the supplying of which, done by a third party, is on the order of a civil courtesy, something less than a distortion of the vote is in order. Anyone who has filed a customs declaration form on returning from abroad is accustomed to seeing obliging officials write in details inadvertently omitted (the proper date ... the flight number ... the airline traveled).

What will certainly need to be advertised more widely than was done in Florida are disqualifying irregularities. If an impression will be required that can't be abbreviated, the point must be made entirely clear. No pregnant ballots? Then no inseminated ballots.

But then perhaps the voting machines that will eventuate under the Torricelli program will not themselves permit halfhearted votes. Maybe, adding an additional $10 million to the program, they can be designed to spit forth: "ASS! PULL LEVER FARTHER DOWN TO REGISTER YOUR VOTE!" This message could be communicated in two languages, to satisfy any charge of ethnic discrimination. And we'd end up with a tally that corresponded to a) the numbers of votes cast, and b) the number of votes that observed the minimal requirements imposed by non-discriminatory laws and regulations.

Are there other reforms? If that means different ways of doing things, the answer is yes, obviously. One could abolish the electoral system, institute proportional representation, levy fines for a failure to vote. The list goes on, but requires that we pause in our reformist zeal to ask: Isn't the constitutional mode a pretty good way of doing things, never mind the statistical anomaly of 100 million voters split almost exactly down the middle?