Al Gore’s Assault on the Constitution

The outcome of the 2000 presidential election is not yet determined. But no matter who ultimately prevails in this unprecedented contest, it is an indisputable fact that Vice President Al Gore and his minions have subjected America’s constitutional republic to an assault unmatched since that launched by Southern Democrats in 1860.

A week after the election, the vice president spoke to reporters declaring that "the campaign is over, but a test of our democracy is now underway….All we need is a common agreement that what is at stake here is not who wins and who loses in a contest for the presidency, but how we honor our Constitution and make sure our democracy works as our founders intended it to work." He called on all parties "to refrain from using inflammatory language and to avoid statements that could make it harder for our country to come together once the counting is over."

His reassuring rhetoric notwithstanding, he and his lieutenants in Florida have followed what can only be called a scorched earth approach designed to call into question the legitimacy, indeed the legality, of an outcome other than a Gore victory. In so doing, they have engaged in a ruthless campaign against the mechanism by which we have chosen our presidents for over two centuries.

Consider the Gore campaign performance since election day. He and his acolytes made baseless charges of illegality against the popular vote canvass conducted in some Florida counties. When it looked like Mr. Bush might win the popular vote and Mr. Gore would win the most electoral votes, the Gore campaign touted the Electoral College. But when the actual outcome was the opposite, the Gore people sought to de-legitimize the Electoral College by stressing the vice-president’s advantage in the overall popular vote. Indeed, they have gone so far as to suggest that since Mr. Gore appears to have received a nationwide plurality of the popular vote, he deserves Florida’s electoral votes, the Constitution notwithstanding.

They engaged in character assassination against Katherine Harris, the Florida secretary of state, because of her decision to act in conformity with the electoral laws of her state. Apparently oblivious to the irony implicit in his description, Gore spokesman Chris Lehane called Ms. Harris a "partisan hack" who was behaving like a "Soviet commissar." He was outdone by Harvard law professor, Alan Dershowitz, formerly of O.J.’s "dream team," who called her a "crook" who "laundered money."

They issued a call to their most loyal allies, the trial lawyers, to send volunteers to help litigate Florida’s election procedures. While insisting on a hand count of machine ballots in heavily Democratic precincts, despite the fact that such an approach is at best subjective, and at worst open to fraud, they issued a memo to their operatives instructing them how to challenge absentee overseas ballots from military personnel. Over 1500 such ballots were disqualified. Despite a pledge to abide by the outcome of the ballot hand count, the Gore team has dragged the process into court, then denounced the Bush campaign for taking defensive legal steps.

They engaged in demagoguery and race baiting, stirring up banana republic-style chaos in the streets of Palm Beach and Tallahassee. Jesse Jackson, the always reliable demagogue, rallied the troops in the street with the charge that Republicans were practicing Jim Crow tactics to deny blacks their right to vote. Donna Brazile, Gore’s campaign manager, went him one better by claiming, without providing any evidence, that "in disproportionately black areas [in Florida], people faced dogs, guns and were required to have three forms of ID." Union members were bused in to put muscle behind the street theater. Meanwhile, they accused Republican protesters of intimidating the Miami-Dade County canvassing board into refusing to do a manual recount. One Democratic member of Congress professed to have caught the whiff of fascism in the Florida air.

Finally, Democrats have brazenly raised the possibility of pressuring electors to change their votes in the Electoral College, should it come to that. Democrats have already approached two of South Carolina’s eight Republican electors. And the Wall Street Journal reports that a Democratic consultant has been "checking into the background of Republican electors, toward persuading a handful of them to vote for Mr. Gore."

But the Gore assault on the Constitution began before election day. It began with his decision to run a divisive campaign. In this regard, the 2000 presidential race resembles the election of 1888, the last time a president lost the popular vote while winning the electoral count. In such races, not even the Electoral College can save us from folly.

Critics of the Electoral College claim that it thwarts the "will of the people." They claim it is an anachronism designed by our elitist founders because they didn’t trust the intelligence of the voters. In the words of the new senator-elect from New York, "I’ve always thought we had outlived the need for an Electoral College, and now that I’m going to the Senate, I am going to try to do what I can to make clear that the popular vote, the will of the people, should be followed."

But the electoral vote is the "will of the people" understood as something more than the simple-minded majoritarianism advocated by the Electoral College abolitionists. The Electoral College requires a presidential candidate to put together a constitutional majority rather than a merely popular one. To do so successfully, the candidate must run a national campaign and achieve a national consensus appealing to a plurality of citizens from many distinct constituencies, each with its own particularities.

In 1888, the Democratic Party candidate Grover Cleveland won the popular vote by around 100, 000 but lost the Electoral College to Republican Benjamin Harrison by running a divisive sectional campaign. He won huge popular majorities in the South, but lost narrow races in the Northeast and Midwest.

Al Gore ran the same kind of race this year, appealing to what Andrew Sullivan in The New Republic called the "twitching carcass" of the Democratic Party’s left wing–"teachers’ unions, feminist activists, gay victimologists, black churches, [and] faculty clubs." By promising more federally funded programs to the Democratic Party’s dependent constituencies, Mr. Gore won populous urban centers but lost the countryside, even in the states that he won.

Just how divisive the Gore campaign was is illustrated by a revealing posting on MSNBC.com by Clinton-Gore operative Paul Begala several days ago. "Yes," he wrote, "tens of millions of good people in Middle America voted Republican. But if you look closely at [the electoral map, showing areas where Gov. Bush won in red] you see a more complex picture. You see the state where James Byrd was lynched–dragged behind a pickup truck until his body came apart–it’s red. You see the state where Matthew Shepard was crucified on a split-rail fence for the crime of being gay–it’s red. You see the state where right-wing extremists blew up a federal office building and murdered scores of federal employees–it’s red. The state where an Army private who was thought to be gay was bludgeoned to death with a baseball bat, and the state where neo-Nazi skinheads murdered two African-Americans because of their skin color, and the state where Bob Jones University spews its anti-Catholic bigotry; they’re all red too."

In other words, the votes of the 48 percent of Americans who chose George Bush are not legitimate because they came from the 29 states populated by murderers, racists, gay-bashers, neo-Nazis and right wing terrorists. It’s hard to be president of the United States when you hold this view of half the population. But it is all part of the scorched earth policy that Mr. Gore and his minions have followed since election day.

In all of this we see the rejection of constitutional form–the organization of government around impartially administered rules and procedures–in favor of winning the near term political fight. Of course, we shouldn’t be surprised at Mr. Gore’s tactics. The substitution of power for principle and the assault on the republican character of the US government represent an approach perfected by President Clinton.

Mackubin Thomas Owens is professor of strategy and force planning at the Naval War College in Newport.