A Crown Of Thorns

The battle for the American presidency is over. All that remains is to count the potential cost to America and the fallout for the rest of the world. From the very beginning, two principles of constitutional law were at war with each other in the confusion that followed the Florida results. The first was the need to ascertain the will of the people to the fullest extent possible—a right guaranteed under the first amendment of the US Constitution. The second was the need to respect the integrity of the constitutional and legal process, enshrined in Article II of the US Constitution. By a 5-4 verdict that has split the US Supreme Court as perhaps no other judgement has in 104 years, the court came down in favour of the latter. It ruled that the Florida Supreme Court had exceeded its authority in extending the deadline for the counting of votes in Florida from November 12 to November 26. On that basis it stopped all manual recounting of votes and invalidated the results of the partial recount that had already taken place.

By the time this happened, George W. Bush's unofficial lead had dwindled to 154. Besides, if one took into account the results of just the partial recount that had taken place in Miami-Dade, it was a foregone conclusion that if the recount was completed, Al Gore would have won. The Supreme Court's decision has thus split America as nothing before. The fact that all the three judgements of the court went strictly on party lines, with the five Republican-appointed judges exercising their power in favour of Bush, has deepened the unease.

What does this lame victory mean for American governance, and what does it tell us about American democracy? The short answer to the first question is that Bush has inherited a crown of thorns. For, with the presidency he has also inherited a near-deadlocked Congress. Getting anything through will require bipartisan support. Bush is a man with a great deal of charm and has had considerable experience as governor of Texas in mobilising such support. But he will now have to do so in an atmosphere embittered by the conviction, shared by all Democrats, that he and his brother Jeb Bush, the Florida governor, used every procedural wrangle they could think of to filibuster him into the presidency. Republicans, and many government watchers in Washington, believe the threat of a deadlock may be more apparent than real. They point out that in practice, many of the Democrats who get elected from the south vote with the Republicans on issues. But the Democrats have another way of paralysing the Bush administration. All important appointments in the administration have to be ratified by Congress. It is in stalling this process that, free from political and economic compulsions, Democrats can give full vent to their bitterness. They have strong political reasons to do so. There is every likelihood that the next Congressional elections in 2002 will see a Democrat majority in both the houses of Congress.

As the dust settles, the air is full of admonitions to minimise the damage this struggle has done to US democracy. There is complete unanimity that the many flaws in the voting-casting system revealed in Florida must be rectified. There is also a perceived need to standardise voting, challenge and recount procedures across the country. Indeed this could well become the most important legislation of the next presidency. But beyond this the election has revealed a weakness in US democracy for which there is no legal or constitutional remedy.This is because it arises out of the comprehensive system of checks and balances upon the power of the executive written into the Constitution that Americans consider to be their democracy's greatest strength.

The five-week struggle for the presidency has thrown this into glaring relief. Almost the first thing that became apparent was the partisanship, conscious or unconscious, of just about everyone involved in the struggle, from an election officer who allowed a Republican to sit inside her office 'correcting' absentee ballot applications but neglected to offer the same facility to the Democrats, to a blatantly partisan Florida secretary of state who used her powers to certify Bush the winner without giving the vote recount allowed by Florida law a chance to be completed. The 'talking heads' on TV have been no better. Presidential power became an end in itself and everyone forgot that it was only a means to an end.

How did this happen? The answer lies in the fact that in the US, the bureaucracy is not apolitical. On the contrary, the entire senior administration consists of political appointees who change with the president or governor. Every appointee knows that if he or she distinguishes himself or herself, he or she could end up much higher on the political ladder. This peculiarity of US democracy, so utterly different from the Indian, British or French systems, stems from the circumstances in which the US Constitution was written. It reflects the awareness of the founding fathers that the distant, arrogant, colonial monarchy whose power they had broken was not alien but comprised Englishmen like themselves. They therefore ascribed the insensitivity and oppression they suffered to the absence of checks and balances to the arbitrary use of executive power. To them, creating an apolitical, and therefore independent, bureaucracy would have been perpetuating the very conditions that had given birth to the revolution.

Their solution was to make the administration temporary. This may have averted one danger but it has created another—that of politicising not only the administration but the judiciary as well. There is no constitutional remedy to this problem, for any remedy would fundamentally alter the democratic system built over 200 years. All that American law-makers can do is graft and tinker to ensure that the system is not so sorely tested ever again.