Ancient Greek mythology explained the origins of the great Trojan War by claiming that the goddess of jealousy incited a quarrel among other goddesses over the question of which one was the most beautiful. Probably not even the Greeks themselves ever really believed this, but perhaps it makes more sense than most democratic political theory does in explaining why the United States is governed the way it is. The theory is that, on a designated day, every four years, the “people” betake themselves to voting booths and express their “will” by secretly marking a ballot, pulling a lever or punching a hole. Up until this year, the theory, while entirely disprovable, managed to survive without serious challenge.
This year, because of the late unpleasantness in the state of Florida, the theory is in the process of collapsing. It is now transparent that whatever happened in Florida on Nov. 7, and whoever is eventually inaugurated as the next president, the “people” and their “will” had virtually nothing to do with it.
It’s quite true that the “people” of Florida voted. Some actually managed to vote for the candidate they wanted to vote for, but after three weeks of counting, recounting and refusing to count, and failing to count the votes cast; after doing so according to different rules and standards in different counties; after throwing out certain absentee ballots because they were not properly postmarked, or had not been properly signed by the proper bureaucrat; after not counting at all the returns from two entire counties because they didn’t meet the deadline set after the election was over, it is simply absurd to claim that the final results in Florida tell us anything whatsoever about what the “people” of the state “willed.”
Nor will that “will” be any more clearly expressed after the several lawsuits have wound their way to conclusion in the courts. The judges are also political partisans, as are the governor, the secretary of state, the legislature and the assorted munchkins and cooky-pushers of the county and state-election authorities. But even if the judges, cabinet officers, lawmakers and cooky-pushers were nonpartisan, it is unclear why their decisions would reflect any substantial body of opinion rather than their own personal and partisan preferences.
Even if we agree to accept one or another vote total as expressive of the “will” of the “people,” however, it is simply not much of an expression. Whether the “accurate” vote margin is 537, 930, 466, 157 or whatever smidgin is finally registered, the “people” did not so much roar a mandate as mumble it. With all due respect to the legality of the Electoral College, any “mandate” that democratic theory recognizes is expressed by the popular vote, not by the peculiar mechanisms of the Constitution.
Then there is the little matter of whether we can any longer (or ever could) speak of a “people” as a coherent body of collective political will at all. It is arguable that both the Constitution and the Federalist papers do not even recognize such a “people,” but rather a congregation of “factions” — interest groups, ethnic groups, classes, social categories, states and sections — that, together, constitute a functioning political society. Today, of course, added to that stew, we have voting blocs of recent immigrants who often don’t speak enough English to understand the political system into which they have been pressed, as well as various illegal aliens and convicted felons casting ballots themselves.
Finally, even if there is a “people,” in the state of Florida or in the United States as a whole, there is the question of its “will” and the capacity of the “people” to express it through casting ballots on a particular day. The more concretely you think about those questions, the more elusive each of them becomes.
The only sense in which any of these concepts reflect social and political reality is a purely legalistic one — the “people” express their “will” on a particular day, in a particular way because that’s what the Constitution and the federal, state, and local election laws say happens. That’s good enough for most of us, and throughout American history it’s been good enough to establish and conduct the functions of government in ways that most Americans are prepared to acknowledge are legitimate.
The German statesman Bismarck said that the process of making laws, like the process of making sausages, does not bear close examination. The same is true of the process of making presidents and expressing the “will” of the “people.” Americans might be well-advised not to look too closely at the mythologies by which they are governed. The real problem with this election has not been that we can’t tell who won, but that it has forced us to look.