Ramón G. Vela, University of Puerto Rico (Río Piedras)
In Bush v. Gore, the U.S. Supreme Court struck down a portion of Florida’s electoral law in the name of political equality. The law required local election officials, when counting votes manually, to examine the ballot and determine the “intent of the voter.” Because this standard is vague, it is possible for two identical ballots to be interpreted differently in different jurisdictions. The Court ruled that this is incompatible with the commitment to political equality implicit in the 14th Amendment’s Equal Protection Clause.
This decision raises an important question about the nature of political fairness. 1 The Court seems to have endorsed a demanding view, according to which inequality may be unfair simply because it is “arbitrary.” In contrast, critics of the Court’s decision hold that political inequalities are acceptable unless they can be expected to disadvantage specific persons. Inequality is objectionable only when it is intended or expected to create patterns of discrimination or disadvantage. The critics are not breaking new ground by taking this position. It is arguably the dominant view among democratic theorists. And it shapes their position on some of the key controversies about democratic institutions––the choice between proportional and winner-take-all representation, the system of political finance, and the design of ballot access requirements. Yet I shall argue that this common view is mistaken. The Court is right to suppose that arbitrary political inequalities may be objectionable, even when they do not create predictable patterns of discrimination or disadvantage. And this conclusion may lead us to rethink the controversies about representation, political finance, and ballot access.
Background to Bush v. Gore
After the general election on November 7, 2000, the Florida Division of Elections reported that George Bush had received 1,784 votes more than Al Gore. This margin was less than 0.05% of the votes cast, so Florida law required a machine recount of all the votes. On November 9, Florida’s Division of Elections reported that Bush had won, but now by only 327 votes.
In light of these results, and also on November 9, Al Gore’s campaign filed protests and sought hand recounts in Volusia, Palm Beach, Broward, and Miami-Dade counties. These recounts proceeded amid a couple of legal disputes. 2 On November 21, Florida’s Supreme Court (in a 7-0 decision) extended the deadline for counties to file their results to November 26, and ordered the Secretary of State to accept these results. On November 26, the Florida Elections Canvassing Commission certified the election and declared Bush the winner.
Al Gore’s campaign filed a contest of this certification on November 27, citing a Florida statute––102.168(3)(c)––allowing candidates to contest an election if there has been “receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election.” This challenge reached the Florida Supreme Court, which made its decision on December 8. The decision contained two key elements. The Court held that votes resulting from several manual recounts be added to the official totals––recounts conducted in accordance with the “intent of the voter” standard. In addition, it ordered that every county conduct a manual recount of its “undervotes” (ballots for which the machines had failed to register a vote for President). These recounts would take place under the state’s “intent” standard.
On December 12, the U.S. Supreme Court ordered an end to the proposed recounts and set aside the order to include the results from previous recounts in the official totals. These recounts would violate, or had violated, the 14th Amendment’s Equal Protection Clause (and there was no time to conduct recounts under procedures that would not violate the 14th Amendment’s Equal Protection and Due Process Clauses). The Court offered several arguments for this conclusion, but the only plausible one involves Florida’s “intent of the voter” standard. 3 Officials counting the votes would be required to determine “the intent of the voter”, with no further guidance. They would be bound to do this in different ways, adopting different rules about how to determine the voter’s intent. This would mean that voters in different counties, or in the same county over time, would be treated differently. The same ballot might be counted differently depending on where and when it was counted. This difference in treatment, said the Court, constituted a substantial deviation from the requirements of political fairness contained in the 14th Amendment’s Equal Protection Clause.
It is worth noting that the Court reached this conclusion with a 7-2 majority. Of course, the decision to reverse the Florida Supreme Court––in particular, to halt the recounts and to prevent inclusion of the previous recounts––was 5-4. Justices Rehnquist, Scalia, Thomas, O’Connor, and Kennedy joined the per curiam opinion. Justices Stevens, Ginsburg, Breyer, and Souter argued that the Court should do something other than reverse the Florida Court (in particular, something other than halt the recounts). On the question of equal protection, however, the decision was 7-2. Only Justices Stevens and Ginsburg argued that the Florida Court’s decision did not raise problems of political equality. 4
The Critics on Bush v. Gore
Most of the opinions in Bush v. Goregive the impression that Florida’s “intent” standard is clearly at odds with the value of political equality. It would allow differential treatment of identical ballots, for no reason other than the rules that county officials happen to adopt here and there, now and then. Beyond this observation of fact, there is little explicit argumentation in Bush v. Gore––either in the way of legal precedent or political principle––to support the conclusion that Florida’s standard is unfair. Yet arguments are needed. For although the “intent” standard is bound to create political inequalities, it is not clear whether these inequalities are unfair. In the following section, I explain this criticism of Bush v. Gore. Subsequently, I suggest that the criticism has substantial roots in contemporary democratic theory.
“Intent” Standards and Political Fairness
The majority’s central concern regarding Florida’s standard for conducting manual recounts involved the lack of guidelines for determining “the intent of the voter.” Florida’s Supreme Court held that state law required that manual recounts be conducted to determine the voter’s intent (if one existed). The per curiam opinion accepted this rule, but held that there must be more specific guidelines. Otherwise, different counties are bound to use different rules for determining the voter’s intent. And the same county may change the rules over time:
The problem inheres in the absence of specific standards to ensure [the “intent of the voter” requirement’s] equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary (104). 5
Without clear, uniform standards, two identical ballots would be counted differently in different counties or at different times. The majority holds that this is an arbitrary form of treatment that undermines the right to vote.
The fact that there are different standards for determining voter intent––at least in a punchcard system––is obvious to anyone who observed the 2000 election. For example, it is not clear whether one should count a ballot in which the “chad” next to a candidate’s name is completely attached to the ballot, but has been “dimpled”. Did the voter intend to vote for that candidate? Or did the voter decide to vote for no one and, therefore, fail to apply enough force to detach the “chad”? Different counties had adopted different rules with respect to questions such as these, and at least one county (Palm Beach) had changed the rule several times in the course of its recount. According to the Court:
The state Supreme Court ratified this uneven treatment. It mandated that the recount totals from two counties, Miami-Dade and Palm Beach, be included in the certified total. The Court also appeared to hold sub silentio that the recount totals from Broward County, which were not completed until after the original November 14 certification by the Secretary of State, were to be considered part of the new certified vote totals even though the county certification was not contested by Vice President Gore. Yet each of the counties used varying standards to determine what was a legal vote. Broward County used a more forgiving standard than Palm Beach County, and uncovered almost thee times as many new votes, a result markedly disproportionate to the difference in population between the counties. (105-106)
The Florida Supreme Court ordered recounts without specifying a standard clearer than the “intent of the voter.” Hence, these recounts were likely to feature the same sorts of inequality. The majority held that these inequalities are in violation of equal protection.
The gist of the Court’s concern, then, is that voters in different counties (or in the same county over time), who cast identical ballots, would have their ballots counted differently. Should that trouble us? This question arises when we notice that the standard was not intended, and could not be used reliably, to discriminate against anyone in particular. Ronald Dworkin makes this point in an essay in the New York Review of Books:
The Florida Court’s “clear intention” standard…puts no one at a disadvantage even if it is interpreted differently in different counties. Voters who indent a chad without punching it clear through run a risk that a vote they did not mean to make will be counted if they live in a county that uses a generous interpretation of the “clear intent” statute; or they run a risk that a vote they meant to make will be discarded if they live in a county that uses a less generous interpretation. But since neither of these risks is worse than the other––both threaten a citizen’s power to make his or her vote count––the abstract standard discriminates against no one, and no question of equal protection is raised. 6
Dworkin’s point gains credence if one compares the equal protection issues in Bush v. Gore and in Reynolds v. Sims. 7 InReynolds, the Court required that Congressional districts be drawn so as to give every vote an equal weight. The problem with districts of different sizes is that some group of persons is certain to be at a disadvantage. People in a populous district are certain to have votes with less weight than people in a sparsely populated district. So there is an inequality in political influence that is predictable and targets a specific group.
These conditions do not hold in the case of an “intent of the voter” standard for conducting manual recounts. There is only a chance that a person’s ballot will be treated unequally. She has to cast a ballot that the machine cannot read, and her ballot has to fall in the gray area where the rules for determining intent make a difference. Moreover, the unequal treatment is not aimed at anyone in particular. It does not favor people in the northern part of the state over the southern part, it does not favor people who live in small towns over those who live in large cities, and so on. It is hard to say before an election who will be hurt if the state allows manual recounts conducted so as to determine the voter’s intent. In short, Florida’s standard is not guaranteed to discriminate against anyone.
It is not clear why we should object to political procedures that do not discriminate against anyone (even if they are unequal in some sense). To see why this might be, consider a thought experiment. Suppose that the citizens of Florida were coming together to write a political “social contract,” which has to meet with everyone’s approval. They would want to find political procedures to which no one would object. Now, it is not hard to see why people in populous districts would object to anything other than a “one person, one vote” standard. Otherwise they would have less influence than people in other districts. Of course, the people in those other districts might have some counter-arguments, so the issue would have to be examined in more detail. But the point is that we can expect a complaint from people in populous districts. In contrast, it is not clear why anyone would reject Florida’s “intent of the voter” standard. That rule does not appear to disadvantage anyone in advance (although there is a risk that one might turn out to be at a disadvantage). Therefore, at first glance, it is not clear why anyone should object to it. And if Florida’s standard is the kind of rule that everyone can be expected to accept, why should we suppose that it is objectionable?
Behind these observations lies an important insight: political inequality is not necessarily unfair. When we propose to pass moral judgment on our political institutions, we need to ask two questions: Do the arrangements create inequalities? Are those inequalities unfair (or objectionable in some other way)? A “yes” to the first question does not imply a “yes” to the second. By way of illustration, consider a common criticism of the decision in Bush v. Gore. The critics point out that different jurisdictions use a wide variety of voting equipment. Some of this equipment is slightly more accurate than the rest. So there is political inequality here (some citizens have a higher chance of not having their votes counted). But it is natural to ask whether this inequality is unfair. As long as the difference in accuracy is small, and as long as its effects are distributed randomly, 8
why should this inequality concern us? Until the 2000 election, in fact, it concerned almost no one. So a political procedure is not unfair simply because it is unequal. The unfairness emerges when the inequality has other features––for example, when it is intended or expected to affect a specific group of persons.
Political Equality or Political Fairness: The Case of Proportional Representation
This distinction between acceptable and unacceptable forms of political inequality is among the key lessons of contemporary democratic theory. To see the idea at work, and to appreciate its importance, consider a long-standing controversy about how we should elect our representatives. Many have thought that the spoils of an electoral contest––e.g., the seats in a legislature––should be distributed proportionately. For example, if a party wins 40% of the votes in a race to elect a ten- member city council, it should receive four seats on the council. In Considerations on Representative Government, John Stuart Mill argued that arrangements such as this are preferable to winner-take-all systems, in which the party with 40% of the votes would not receive a single seat. According to Mill:
In a really equal democracy every or any section would be represented, not disproportionately, but proportionately. A majority of the electors would always have a majority of the representatives, but a minority of the electors would always have a minority of the representatives. Man for man they would be as fully represented as the majority. 9
Mill is arguing that, if proportional representation (PR) is a reasonably workable system, then we ought to adopt it, for it is more compatible with the value of political equality. 10 This argument continues to hold some appeal. Yet many prominent democratic theorists maintain that the argument is mistaken. Although proportional representation offers a kind of equality that is absent from winner-take-all systems, this sort of equality is not an important feature of a fair political process.
Consider Charles Beitz’s argument for the claim that political fairness does not always call for proportional representation. 11 Beitz recognizes that PR systems provide a kind of equality that is missing from winner-take-all systems (WTAR). Both PR and WTAR provide voters with equal power over electoral outcomes: each voter must overcome the same amount of resistance to prevail, because every vote has an equal weight. But PR comes closer to a second sort of equality, namely, equal prospects of success. It allows more people to vote for a winning candidate––to cast a ballot that elects someone. As Lani Guinier has argued, PR provides “an equal opportunity to vote for a winning candidate.” 12 It achieves “one vote, one value,” and it “wastes” fewer votes. So PR achieves a kind of equality that WTAR does not.
Yet Beitz argues that political procedures do not become unfair simply because they fail to provide “equal prospects of success.” How come? According to Beitz, political inequalities are unfair when they threaten a person’s fundamental interests. Among these interests is an “interest in recognition”: people have an interest in political procedures that do not mark them as being inferior to others. A political arrangement that gives some votes more weight than others––for example, that gives rural voters, or white voters, more clout than urban or black voters––seems to be incompatible with this fundamental interest. And so it is unfair. But it is not clear why there is a similar failure of recognition if we adopt a winner-take-all system of representation. Such a system deprives many people of the opportunity to cast a ballot that helps to elect someone. But why does this indicate that those people are less worthy than others? Certainly it indicates that some people have preferences that differ from those of the majority. It may even indicate that the majority think those preferences are deeply objectionable in some sense (e.g., suppose that a pro-choice party always loses at the polls). But it does not appear to indicate anything about the relative worth of different individuals. And so a winner-take-all system is, to this extent, perfectly compatible with the value of political equality, even if it does not provide “equal prospects of success.”
This line of argument resembles the criticism of Bush v. Gore I described earlier. It is agreed that Florida’s “intent” standard will create some sort of inequality. The question is whether the inequality at hand should concern us. Critics argue that it should not. The reason is that inequality per se is not objectionable. After all, the political process has all sorts of inequalities, such as the fact that different jurisdictions use voting equipment with different levels of accuracy. Political inequalities are objectionable only when they have a special kind of impact on someone: for example, when they are intended or can be expected to discriminate against specific persons. Given that Florida’s “intent” standard is lacking this feature, the critics argue, it is not incompatible with the value of political equality.
The Court’s Position
In Bush v. Gore, seven Justices held that Florida’s intent standard would infringe on the right to an equal vote. Different ballots would be treated differently, according to the vote counter’s method of determining voter intent. Even though this process cannot be predicted to favor or harm anyone in particular, it is still a form of political unfairness.
Why should that be so? The Court’s reasoning is not crystal clear, but it appears to go as follows: The value of political equality requires that a state’s elections law give an “equal weight” to each vote and acknowledge each citizen’s “equal dignity”(103). This means that the law may not “value one person’s vote over that of another” by allowing “arbitrary and disparate treatment” of a person’s vote (103-104). Florida’s “intent of the voter” standard would diminish the value of some people’s votes. And it would do so by allowing those votes to be treated in a disparate and arbitrary manner. Hence the standard is in conflict with the value of political equality.
Let me describe this argument in two steps. First, I will explain the basic premises about political equality underlying the per curiam opinion. Then I will explain why Florida’s standard would assign a lower value to some people’s votes by treating their ballots in a disparate and arbitrary manner.
The Majority on Political Equality
Insofar as the Court’s decision is based on theoretical considerations about political equality, their most abstract statements are contained in part IIB of the per curiam opinion. The Justices write:
When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. (103)
Shortly thereafter they add:
The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. (103-104)
The way to assess the Florida Supreme Court’s decision, concludes the U.S. Supreme Court Majority, is to determine whether the Court went astray of its obligation to avoid “arbitrary and disparate treatment” of the state’s electorate (104).
These remarks are suggestive, but they are not very clear. What is the connection between the comments about “equal weight” and “equal dignity” in the first passage? What is their connection to the concern about votes having different values as a result of “arbitrary and disparate treatment?” And what does “arbitrary” treatment amount to? There is very little in the per curiam opinion to help one answer these questions. 13 However, the discussion of Charles Beitz’s theory above suggests a natural interpretation of the Court’s per curiam opinion. On this view, our first concern is to have electoral laws that recognize each citizen’s “equal dignity.” Procedures that assign different weights to different votes, for example, are objectionable in part because they do not provide such recognition. Suppose that people in sparsely populated rural districts enjoy more influence than people in populous urban districts (as happened in the Court’s reapportionment cases). Here electoral laws confer an advantage on some people over others. And so they fail to recognize each person equally. They indicate to some people that their views or interests do not deserve as much consideration as those of other people.
Florida’s “Intent” Standard as Arbitrary
In Bush v. Gore the Court identifies another kind of “equal dignity” problem. It suggests that “disparate treatment” is unfair when there is no good reason for it, even if it does not target anyone in particular. Random inequalities offend against our equal dignity when there is no good reason for them.
Now it is apparent how an “intent of the voter” standard might value votes differently by treating them in a disparate manner. The difference in value stems from the fact that some votes will be counted and others will not. The “disparate treatment” derives from the fact that different counties––and the same county over time––will interpret “intent of the voter” in different ways. Two identical ballots may be treated differently. So it seems clear that Florida’s standard allows “disparate treatment” that will give votes a different value. The real question is whether this treatment is “arbitrary.” According to the per curiam opinion, Florida’s standard is arbitrary in two respects. First, it creates inequalities that have no rational explanation. Second, it is a standard that is unnecessarily vague. Let me describe each point in turn.
The Court appears to think that an “intent of the voter” standard will create inequalities that cannot be explained to those on the wrong end of the inequality. The Justices believe that sometimes there is no obvious way to determine a voter’s intent. One’s conclusion will depend on the rule one adopts (e.g., “dimpled chads” don’t count). And reasonable people are likely to adopt different rules. So there is no single “right” or “best” way of determining voter intent. This means that when two identical ballots are counted differently in two different counties, there is no good reason for the difference. Since each county’s method is acceptable, the difference in treatment lacks a good reason. 14
The Court’s other claim is that this baseless difference in treatment is avoidable. According to the Court:
The law does not refrain from searching for the intent of the act in a multitude of circumstances; and in some cases the general command to ascertain intent is not susceptible to much further refinement. In this instance, however, the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper which, it is said, might not have registered as a vote during the machine count. The factfinder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment. (104)
The Court agrees that disparate treatment, deriving from vagueness in the law, may be acceptable when no good alternative to vagueness presents itself. For example, telling a jury to determine whether a person is guilty, beyond a “reasonable doubt,” creates the potential for unequal treatment without a good reason. Different juries may interpret the phrase “reasonable doubt” differently. And there is no good reason why a given person gets a given jury. Yet we have no good alternative to using vague guidelines such as these. Criminal cases can be extremely complex, so the instructions to a jury must contain a great deal of vagueness. However, that is not the case in regard to counting ballots. Here precise rules are possible (e.g., do not count “dimpled chads”). Yet Florida did not choose specific rules, for no apparent reason.
The problem with Florida’s standard, then, is that it assigns a different value to different votes by treating them unequally and arbitrarily. This interpretation of the equal protection problem is apparent also in Justice Souter’s dissenting opinion. He writes:
Petitioners have raised an equal protection claim . . . in the charge that unjustifiably disparate standards are applied in different electoral jurisdictions to otherwise identical facts. It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even different mechanisms will have different levels of effectiveness in recording voters’ intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on. But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter’s intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics… I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters’ fundamental right. The differences appear wholly arbitrary (125).
It is not clear why Justice Souter thinks that manual recounts create “a different order of disparity” relative to machine recounts, or what importance he attaches to this fact. But setting that question aside, his view appears to be that allowing a variety of voting machines might serve some legitimate state interests. Such interests are absent in the case of Florida’s standard. Hence the “differences” it creates are “wholly arbitrary.”
We are now in a position to appreciate the disagreement between the Court and its critics. The latter contend that political inequality is objectionable only when it is intended or can be predicted to burden specific persons. For only then can we say that the law fails to recognize each citizen as an equal. In contrast, the Court suggests that political inequalities lacking a proper justification may be objectionable, whether or not they threaten specific individuals. Their arbitrariness constitutes a failure to recognize citizens equally.
What bearing does this controversy have beyond Bush v. Gore? As a matter of constitutional law, we may have to wait a good while for the ideas in the Court’s per curiam opinion to bear fruit. 15 But it is worth asking not simply what the U.S. Constitution says, but what it ought to say. And the disagreement about political equality I have described has a substantial bearing on this question. Let us examine four examples.
To appreciate how the ideas in Bush v. Gore might bear on the character of a fair political process, it is useful to compare that case with another recent decision on the political process,
Timmons v. Twin Cities Area New Party (1997). 16 Here the Court upheld Minnesota’s ban on electoral “fusion.” In a fusion ballot, a candidate’s name appears under more than one party’s column. (For example, Ronald Reagan might appear as a Republican and as a Libertarian). Fusion helps small parties to succeed inasmuch as it makes it easier for them to gain ballot access. Hence a ban on fusion favors the major parties. To this extent it creates an inequality in political influence. People with the interests and ideas that the major parties espouse have a greater degree of influence, simply because the system is arranged in a certain way (not because their views are more popular). 17 Now suppose that there is no compelling reason to allow this sort of inequality. Is it unfair?
In Timmons the Court said “no”. The inequality that fusion bans impose is not objectionable. According to Justice Rhenquist’s opinion for the Court:
…the supposed benefits to minor parties of fusion does [sic] not require that Minnesota permit it. Many features of our political system––e.g., single-member districts, “first past the post” elections, and the high costs of campaigning––make it difficult for third parties to succeed in American politics. But the Constitution does not require states to permit fusion any more than it requires them to move to proportional-representation elections or public financing of campaigns. 18
Hence inequality in political influence is compatible with the 14th Amendment, and, perhaps, with the requirements of political fairness. Of course, this is just what the critics say about Bush v. Gore. Indeed, part of Justice Rhenquist’s argument in Timmonsresembles the criticisms of that decision:
. . . Minnesota has not directly precluded minor political parties from developing and organizing. Nor has Minnesota excluded a particular group of citizens, or a political party, from participation in the election process. The New Party remains free to endorse whom it likes, to ally itself with others, to nominate candidates for office, and to spread its message to all who will listen. 19
In other words, there are two kinds of inequality in political influence: discriminatory and non- discriminatory. The first are directed at specific individuals or parties. The second are general rules that do not make reference to specific persons or associations. (These may happen to favor some existing individuals or parties, but they are not designed to do so.) Although the first kind of inequality is objectionable, the second is not. This argument parallels what the critics have said about Bush v. Gore––in a nutshell, that the inequalities at issue were non-discriminatory.
Yet the majority opinions in Bush v. Gore may lead us to reconsider this argument. Fusion bans create an inequality in political influence. Hence the state should be required to produce a convincing justification for them. Assuming that such reasons are not available––which seems likely, since several states allow fusion without major difficulties––we might conclude that a fair political process should allow fusion candidacies.
There is a common intuition that the role of money in politics gives some people a larger say than others, and that this is unfair. Indeed, the system of political finance established in 1972 and 1974––which the Supreme Court weakened in Buckley v. Valeo20 ––had political equality among its aims. (The Court recognized in Buckley that the Federal Elections Campaign Act was “aimed in part at equalizing the relative ability of all voters to affect electoral outcomes.”) 21
Yet some democratic theorists suggest that this intuition is mistaken. The fact that some people can spend more on the political process does not offend against our equal dignity. To see the intuition behind this claim, consider an example. Suppose we have a local referendum with two options. The people who back one side are more eloquent than those who back the other side. In addition, they are more willing to go door-to-door in support of their views, to do phone-banking, etc. In that case there is bound to be an inequality in political influence. But how does it constitute a failure to recognize citizens as equals? Allowing people to argue their case and to work hard on behalf of their views does not imply that others are inferior.
We are now in a position to see what lies behind the intuition that unregulated political spending creates unfair inequalities in political influence. A laissez-faire system gives wealthy people more of a say in the political process (other things being equal) and this inequality appears to lack a good justification. When a person has more influence because she is persuasive, the fact that others are persuaded is reason enough for the fact that she has more influence. When people with roughly equal resources spend different amounts on the political process, we might welcome this as a measure of how strongly people feel. But in a society with substantial economic inequalities, an unregulated system of political finance creates inequalities that lack such justifications. Wealth does not make an appreciable contribution to political deliberation. And those who spend it do not necessarily care more about an issue than others. It is simply that they have more to spend, and that such spending makes their voices louder. Hence an unregulated system of political finance appears to create arbitrary inequalities in political influence––that is, inequalities lacking a proper justification.
Consider an example. Suppose that our society is deciding whether to allow human cloning. And suppose that there are two individuals, one pro-cloning and one anti-cloning. Both care about the issue. Each wants to live in a society that makes the right choice. But one is Ross Perot and the other Joe Schmo. Ross gets to take out large editorial ads in the country’s major newspapers. He buys thirty minutes of prime time on the big networks. And he pays to have anti-cloning billboards set up all over the country. Meanwhile, Joe Schmo gets to write his Congressman (who responds with a form letter). His local paper will publish a short letter-to-the-editor (if he’s lucky). And he will install a pro-cloning sign on his lawn. This situation features a kind of political inequality that seems unfair. And we are now able to see the source of that intuition. The political system is set up––perhaps not intentionally––so as to favor one person’s point of view over another’s. And this inequality is not likely to produce a better decision on the question of human cloning, nor even to give an accurate measure of how strongly each person feels. Indeed, it is hard to see what political purpose the inequality serves.
The case of proportional representation mirrors the situation in political finance: once we acknowledge that political inequalities can be objectionable because they are arbitrary, we can explain why proportional representation seems more democratic than winner-take-all representation. Most democrats regard representation as a necessary evil. The ideal arrangement is one in which people vote on the issues themselves. Yet such systems face a range of potential difficulties: they are time-consuming, they inhibit deliberation, etc. So we must make use of representation. Now proportional systems come closest to the ideal of direct democracy. 22 This is why the ability to vote for a candidate who actually wins––what Beitz calls “equal prospects of success”––is important. And winner-take-all systems lack this feature. They are a step away from the ideal of direct democracy––as if the Republican majority in a small town passed a law prohibiting democrats from attending town meetings.
Of course, that is not to say that a process is undemocratic simply because it uses winner- take-all representation. Some scholars believe that PR creates obstacles to political stability and effective governance. When and where these concerns are reasonable, they certainly count against the idea that a democratic society should elect its representatives proportionately. But we may come to the conclusion that the worries about PR are over-stated. We may learn to avoid them. Or we may encounter cases where PR is likely to work properly. In such circumstances, the inequality that characterizes winner-take-all representation lacks a convincing justification. And so we might conclude that the value of political equality requires a proportional system.
Although the position implicit in Bush v. Gore will heighten our sensitivity to political inequality, it does not entail that every disparity in the political process is unfair. Ironically, the decision in Bush v. Gore provides a good illustration of this point: theper curiam opinion is unpersuasive even if one adopts its conception of political equality. It is worth explaining this point, not to criticize the Court (whose decision is a fait de compli), but to show that the conception of political equality implicit in Bush v. Gore does not threaten every facet of our political system.
The Court’s argument emphasizes the idea that Florida’s “intent” standard allowed disparate treatment arbitrarily, that is, without reason. It is this lack of justification that makes the inequality incompatible with each citizen’s “equal dignity.” As Justice Souter puts it, the problem is that Florida’s standard serves no legitimate state interest. If this is the Court’s position, though, it faces an obvious challenge: a vague, “intent of the voter” standard does not seem arbitrary. Indeed, it appears to serve an interest internal to the value of political equality itself––namely, counting votes in an accurate manner.
As critics of the Court’s decision have argued, allowing local officials to exercise discretion may increase the likelihood that a voter’s intent will be determined correctly. For example, suppose that someone makes strong indentations for every question on the ballot, except one. It seems reasonable to conclude that she did not intend to cast a vote on that question (she changed her mind). 23 Or suppose that we have a ballot with a great deal of slight indentations, “hanging chads,” and so on. Again it seems reasonable to suppose that this voter did not use a lot of force, but intended to vote on the relevant issues. Allowing local officials to exercise discretion may enable them to identify the voter’s intent in cases such as these. And if their discretion serves (or is likely to serve) that purpose, the inequalities it creates do not seem arbitrary. Now we have a reason for those inequalities. The reason is that, in the state’s judgment, a vague “intent of the voter” standard will produce a more accurate count than a specific set of rules.
It is hard to see how one could argue that this state interest––in counting a larger number of votes accurately––is not legitimate. Indeed, the interest in question seems more “legitimate” than the ones Justice Souter cites in favor of allowing local jurisdictions to use different voting machines. He cites the interest in lowering costs. But such considerations seem weak, given the Court’s language about the fundamental right to vote. Unless the costs in question are prohibitive, why should they allow a state to violate the Equal Protection Clause? In contrast, the state interest that I have identified with regard to Florida’s standard is an interest related intimately to the Court’s fundamental right. It is an interest internal to the value of political equality.
Of course, there may be other arguments against Florida’s “intent of the voter” standard. At one point, the Court says that Florida’s contest procedure, as mandated by its Supreme Court, is not “well calculated to sustain the confidence that all citizens must have in the outcome of elections” (107). Yet, the Court’s main argument is not persuasive––even though the claim about political equality that underlies it is.
Which View is Correct?
Thus far we have encountered a disagreement about political equality, and we have seen that its resolution may have important implications for the shape of our political institutions. The question that remains is who is correct: the Court or its critics? I believe that the seven justices who saw an equal protection problem with Florida’s “intent of the voter” standard have the better position (in regard to political equality). It is not possible to defend this conclusion at length here, but let me enter a few remarks on its behalf.
The conception of political equality that critics of Bush v. Gore defend––and that features in much work in contemporary democratic theory––is unpersuasive because we can imagine random inequalities in the political process that seem objectionable. For example, it is unacceptable to conduct elections by polling a sample of the electorate. Everyone must have an opportunity to vote, and we must go to considerable lengths to ensure that each vote is counted accurately. Yet it would be hard to explain this intuition with a theory that condemns only non-random inequalities. Proper sampling is, by definition, random. Hence our intuitions about what democracy requires suggest that there is something in the idea of political equality that goes beyond the need to prevent predictable patterns of advantage or disadvantage.
The Court’s view, on the other hand, fits better with the idea that political institutions must answer to our equal dignity. When equals undertake to govern their common affairs, it is natural for them to establish a process that is egalitarian in every aspect. They begin from the presumption that every political inequality is unacceptable. Of course, this ideal is unattainable, especially in a large, complex society. Hence there are political inequalities that everyone is willing to accept, because they are necessary for an effective political process. This hypothetical, unanimous consent explains why the inequalities are compatible with our equal dignity. But such an explanation is lacking when the state cannot produce a convincing reason for political inequality. Here the law is at odds with our underlying commitment to govern our common affairs as equals.
Unfortunately, this failure of recognition can be obscured by an implicit, consumerist vision of the political process. Suppose we liken political decision-making to the proverbial pie. There are two ways of dividing it: we can raffle the entire pie (or the largest slice) to one person, or we can ensure that everyone’s piece is the same size. Now both methods are ‘equal’ in this sense: neither can be expected to advantage anyone (beforehand). But the first method regards political participation as a kind of luxury, a good that one would like to have, but not one that everyone must have. The second method reflects the thought that those who do not have an equal slice are being deprived of something important. Now each of these methods has its place. But governing our common affairs is not a luxury. It is something that every citizen expects to enjoy, and to enjoy equally.
I have argued that the controversy surrounding Bush v. Gore raises an important question about the nature of political equality. The Court held that Florida’s “intent of the voter” standard was incompatible with the 14th Amendment’s Equal Protection Clause. When the state diminishes the value of a citizen’s vote, it must have a good reason for doing so, because differences in political influence resulting from “arbitrary and disparate treatment” are unfair (103). On the belief that Florida’s standard lacked such reasons, seven of the nine justices found it to be unacceptable. According to Justice Souter, for example, the intent standard produced inequalities that served “no legitimate state interest” (125). Critics of the Court’s decision respond that Florida’s standard treats people equally, properly speaking, because it does not discriminate against anyone in particular. For instance, Ronald Dworkin argues that the intent standard raises “no equal protection problems” because it “puts no one at a disadvantage” and “discriminates against no one.” 24 In short, the Court rejects “intent of the voter” standards because they create “arbitrary” inequalities in political influence, whereas many critics maintain that arbitrary inequalities are not objectionable unless they can be expected to disadvantage or discriminate against specific persons.
Most democratic theorists would be tempted to agree with Dworkin that political inequalities are acceptable unless they discriminate or disadvantage specific individuals. According to Charles Beitz, for example, inequalities are unfair when they convey the impression that some people are less valuable than others. Political inequalities that impose special burdens on specific persons, in a predictable way, convey the impression that those people are less worthy than others. For example, a districting plan that disadvantages areas with large Latino populations may convey the impression that Latinos are less worthy than others. But it is not clear how differences in treatment can signal differences in worth when they are not intended and cannot be expected to burden anyone in particular.
Yet there is an answer to this question implicit in the Supreme Court’s decision in Bush v. Gore. It is that arbitrary inequalities may be unfair because they are arbitrary. When the state creates political inequalities, it must have a good reason for doing so. Otherwise the inequalities are incompatible with the recognition of each citizen’s “equal dignity” (103). I have argued that, in articulating this position, the Court has taken a significant and fortuitous step beyond the prevailing conceptions of political equality. And it is a step that may have implications for several key questions about the design of democratic institutions.
Beitz, Charles R. Political Equality: An Essay in Democratic Theory. Princeton, NJ: Princeton UP, 1989.
Buckley v. Valeo. 424 U.S. 1. U.S. Supreme Court 1976.
Dionne, E. J., Jr. and William Kristol, eds. Bush v. Gore: The Court Cases and the Commentary. Washington, D.C.: Brookings Institution Press, 2001.
Dworkin, Ronald. “A Badly Flawed Election: An Exchange”. New York Review of Books 22 (February 2001): 9-10.
Gray v. Sanders. 372 U.S. 368. U.S. Supreme Court 1963.
Guinier, Lani. The Tyranny of the Majority: Fundamental Fairness in Representative Democracy. New York: The Free Press, 1994.
Moore v. Ogilvie. 394 U.S. 814. U.S. Supreme Court 1969.
Reynolds v. Sims. 377 U.S. 533. U.S. Supreme Court 1964.
Timmons v. Twin Cities Area New Party. No. 95-1608. U.S. Supreme Court 1997.
- In this essay I use the terms “political equality” and “political fairness” interchangeably.
- These were the “November 14 deadline” and “error in voter tabulation” disputes. The first question was whether Florida law required the counties to submit their final results seven days after the election, on November 14; whether the requirement could be waived or imposed at the Secretary of State’s discretion; or whether the Secretary was required to accept election returns delivered after November 14. The second issue emerged because several counties counted a sample of votes manually, which revealed a divergence from the machine count. The question was whether this discrepancy amounted to an “error in vote tabulation” according to Florida’s statute.
- The per curiam opinion raises three equal protection problems beyond the “intent” issue. They do not seem very troubling, though.
- Note that Bush v. Gore raised another legal question, namely, whether the Florida Supreme Court’s decision violated federal law and/or Article II, section 1, clause 2 of the Constitution. Only Justices Rhenquist, Scalia, and Thomas reached this conclusion.
- References to the opinions in Bush v. Gore are given in parentheses and are drawn from E. J. Dionne, Jr. and William Kristol, eds., Bush v. Gore: The Court Cases and the Commentary (Washington, D.C.: Brookings Institution Press, 2001).
- Dworkin, “A Badly Flawed Election: An Exchange,” New York Review of Books 22 February 2001: 9- 10.
- 377 U.S. 533 (1964).
- As a matter of fact, the inequality produced by the use of different voting machines may not be random. Inasmuch as wealthier jurisdictions tend to have the better machines, there is an economic bias in the likelihood of having one’s vote counted.
- Charles R. Beitz, Political Equality:An Essay in Democratic Theory (Princeton, NJ: Princeton UP, 1989) 124 (citing chap. VII of Mill’s Considerations on Representative Government).
- This is not to say that PR is absolutely necessary. One must determine whether PR is a workable system, given the society and circumstances at hand.
- Charles R. Beitz, Political Equality:An Essay in Democratic Theory (Princeton, NJ: Princeton UP, 1989) 124 (citing chap. VII of Mill’s Considerations on Representative Government).
- This is not to say that PR is absolutely necessary. One must determine whether PR is a workable system, given the society and circumstances at hand.
- Beitz, Political Equality, chap.Six.
- I have al Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (New York: Free Press, 1994) 122. ready quoted the most pertinent passages, and precedent does not help very much. The opinion mentions two cases, Gray v. Sanders and Moore v. Ogilvie. The trouble is that these are reapportionment cases like Reynolds v. Sims. They have to do with predictable differences in the value of one’s right to vote, differences that affect specific groups of people. For example, in Moore the Court struck down an Illinois statute because it “discriminates against the residents of the populous counties . . . in favor of rural sections.” See Gray v. Sanders, 372 U.S. 368 (1963) and Moore v. Ogilvie, 394 U.S. 814 (1969).
- I assume that this is among the Court’s concerns in those passages of the per curiam opinion that describe the different rules adopted in different counties.
- For one thing, the case is concerned with the right to vote, whereas the most salient issues in contemporary democratic theory concern other aspects of the political process––ballot access regulations, political finance, etc. Moreover, the per curiam opinion contains indications that it is not to be construed as precedent.
- No. 95-1608 (1997).
- A lower court had said that Minnesota’s ban keeps the New Party “from developing consensual political alliances and thus broadening the base of public participation in and support for its activities” (quoted in Timmons 8).
- Timmons 9 (citations omitted).
- 424 U.S. 1 (1976)
- Buckley 17.
- For example, if every citizen is part of a legislative assembly, then, by definition, every point of view in the population is represented proportionately.
- This example is drawn from Dworkin’s essay in the New York Review of Books.
- Dworkin, “A Badly Flawed Election: An Exchange,” New York Review of Books 22 February 2001: 9-10.