Breaking the Deadlock - Richard A. Posner

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Breaking the Deadlock

by
Richard Posner

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Title:	Breaking the Deadlock
Author:	Richard A. Posner
Genre:	Law
Written:	2001
Length:	265 pages
Availability:	Breaking the Deadlock - US
	Breaking the Deadlock - UK
	Breaking the Deadlock - Canada

The 2000 Election, the Constitution, and the Courts

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Our Assessment:

B : decent if sometimes unbalanced overview of the 2000 U.S. presidential election debacle

See our review for fuller assessment.

Review Summaries
Source	Rating	Date	Reviewer
The Economist	.	4/8/2001	.
The Nation	A-	12/11/2001	Leonard H. Becker
The NY Times Book Rev.	.	15/7/2001	Ethan Bronner

From the Reviews:

"Richard Posner, a star of the economics-and-law movement and a free-market liberal, agrees that the Supreme Court's reasoning was abominable. But he defends the judgment itself on the pragmatic ground that a firm and immediate decision was needed to avoid a constitutional crisis." - The Economist

"On the subject of Bush v. Gore, Judge Posner's efforts must be counted only partially successful. (...) Judge Posner's ultimate justification -- that the Court saved us from ourselves or, more precisely, from the provisions for presidential elections prescribed by the Constitution and enabling acts of Congress -- hints at an abandonment of the rule of law in the face of circumstances that were nowhere near as exigent as he suggests. (...) (A) valuable and even indispensable work to the debate over the 2000 election." - Leonard H. Becker, The Nation

"(A) powerful defense of the ruling (.....) Agree or not, for devotees of public policy there are few pleasures as keen as reading Richard Posner. He is clever, original and tough-minded." - Ethan Bronner, The New York Times Book Review

Please note that these ratings solely represent the complete review's biased interpretation and subjective opinion of the actual reviews and do not claim to accurately reflect or represent the views of the reviewers. Similarly the illustrative quotes chosen here are merely those the complete review subjectively believes represent the tenor and judgment of the review as a whole. We acknowledge (and remind and warn you) that they may, in fact, be entirely unrepresentative of the actual reviews by any other measure.

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The complete review's Review:

       The ever-prolific Judge Posner, barely done with tackling one political scandal (see An Affair of State (and our review)), soon enough had his say about the next. Breaking the Deadlock is his analysis -- almost immediately after the fact -- of what went wrong, what didn't, and what lessons might be learnt from the to-do surrounding the disputed American presidential election of 2000 (which led to George Bush Jr. becoming president).
       A great deal was written about the on-going dispute and legal wranglings in November and December 2000. Posner's book -- like several others that have been published since -- affords a broader, retrospective look. Breaking the Deadlock isn't the definitive account of what happened (that is not Posner's intent here), but it is a fairly comprehensive analysis of the major issues, and it does discuss the faults, wrongs, and rights that occurred along the way (as Posner sees them). Posner has firm opinions, and he makes them clear. Some of his points are certainly valid, others questionable. More surprisingly, his arguments aren't always sound and some of his contentions seem quite dubious.
       Posner begins with a discussion of the nature of democracy itself -- the foundation of the system --, making clear that America's is not a pure but rather a representational democracy -- and insisting that that is certainly for the best. (He rather presumptuously refers back to his conclusions near the end of the book, reminding readers: "we know from Chapter 1 that pure democracy is as undesirable as it is unattainable" -- though we (the complete review, not the -- royal ? -- "we" he refers to) beg to differ, knowing no such thing, despite what we read in Chapter 1.) Who gets to vote and barriers to voting are, of course, of particular importance in the case at hand, since many people were apparently literally unable to vote in the prescribed manner in Florida in 2000. On the one hand, it is hard to have sympathy with people who are too stupid to vote, but Posner correctly emphasizes that there is no excuse for dis-enfranchising, for example, illiterates.
       Moving to the Florida vote, he begins by making an essential point: the outcome in the presidential election, in Florida, was a "statistical tie". The meaning of this is that there is no way of determining with any reasonable mathematical certainty who received more votes, George Bush Jr. or Al Gore. The original tabulation in Florida found 1784 more votes for the junior Bush than Gore. The mechanical recount, conducted automatically (unless Gore refused it, which he did not), narrowed that down to only 327 more votes for the junior Bush. (Both these totals do not include the overseas-ballots, which added 603 votes to the junior Bush's plurality.) This discrepancy is not often remarked upon, and Posner doesn't make too much of it either, but it should be noted: two counts of the vote by machine (before any of the hand-counts and hanging chad issues etc. ever came into the picture) resulted in a difference of 1457 votes. If the difference in two counts that should lead to identical results is more than four times the vote-difference between the two candidates (1457 vs. 327) you've got a big problem. (Posner later states that: "The canvassing board has no business looking at the ballots unless there has been an error in the vote tabulation, that is, in the machine count. And that was never found here." We suggest that surely the (relatively) significant disparity between the original tabulation and the mechanical recount is a prima facie example of an error in vote-tabulation somewhere along the way (one of the machine counts, after all, is obviously wrong).) But Posner makes the correct observation: statistically it is impossible to say that one candidate had more votes than the other. Considering matters mathematically, there is no way to state with anything beyond the slimmest certainty, that the junior Bush actually "won" Florida. (Similarly -- and this must not be forgotten -- one can not say that Gore "won" either.)
       As a consequence, in some respects, the proposed (and actual) hand and other recounts arising from the legal challenges also served little purpose. Posner is not wrong when he states:

These recounts cannot reveal who "really" won, because the subjectivity involved in hand counting punchcard ballots, the biases of counters, and, underlying both points, the fact that what shall count in a hand recount as a vote is a contestable issue, both of law and judgment.

All this is correct -- yet ignores the fact that, because the vote is so close, it is simply impossible to ever say "who 'really' won" in any case. Even with machine-counting there is also a statistical margin for error -- clearly greater than the difference between the two vote-totals -- and repeated machine-recounts would also have yielded varying totals. (In addition, each recount affects future recounts, as especially the disputed punchcards get changed in the counting process itself: hanging chads fall off, etc.) With enough recounts -- of whatever form -- one would get a nice Bell-curve of results, allowing one to make an almost reasonable estimation of who actually won -- were it not for the fact that many of the ballots would probably not withstand so much handling and that the recounting process itself would affect the outcome.
Still, somebody had to win, so there was a lot of fun debate and many legal challenges to certain votes in certain areas. Posner handles most of this quite well, explaining the different ballot-issues that arose, and his spin on them. Still, even here he does not always convince, explaining for example that ballot instructions "were clear and if followed would ensure that a vote would be registered" -- and then giving the following parenthetical example from Broward County:

(...) the instruction was to "punch the stylus straight down through the ballot card for the candidates or issues of your choice"

       Obviously these are not all the voting instructions, and the context would make it clearer what to do, but even so these instructions don't seem very clear: Punching seems like an odd instruction, and while it may, in context, be obvious where you should stick (or rather: punch) your stylus, surely that could be explicitly stated. There is, in fact, also no mention that one should make a hole on the ballot -- i.e. what the result of the punching should be. The instructions also speak of both "candidates" and "issues", i.e. in the plural, suggesting that perhaps one can vote for more than one candidate for a specific office (elsewhere voters are perhaps reminded not to do this, but the instructions certainly don't say that in Posner's example). Finally, while it may be obvious, given the context, "stylus" is not a word that most people use, and we would guess that most people one asked on the street would not be able to give a definition of the word.
       Eventually, the legal challenges culminated in a Supreme Court ruling that essentially handed Florida -- and with it, the Presidency -- to the junior Bush. Posner does get one of the central issues absolutely right: the Supreme Court majority's rationale for its decision (that the proposed recount "would deny Florida voters the equal protection of the laws, in violation of the Fourteenth Amendment, because the absence of a precise standard to guide the recounters would inevitably result in different voters' votes being weighted differently") was not a good one. As he writes: "This is not a persuasive ground." He also illustrates the obvious: votes already are counted differently, using "different equipment, methods, ballots, and instruction", throughout Florida and throughout the US.
       The Supreme Court's reasoning is ... unreasonable (and it is equally astounding that Gore's lawyers apparently did not argue against this preposterous idea). The decision is also a consequential one with regards to future elections, as Posner notes -- though no one seems to be paying much heed to the implications.
       Posner -- a pragmatist -- isn't all that upset with the Supreme Court decision, because the outcome was the desirable one. He paints a horror picture of possible what-ifs if the recount issue hadn't been resolved -- including the possibility of Strom Thurmond as acting President (a nightmare of Reaganesque proportions). Posner is pretty sure of himself: "We know only what could have ensued -- and what could have ensued is fairly described as chaos." Fairly ? He does not even consider the possibility that what could have ensued could be fairly described as indifferent calm.
       Certainly, there could have been an Al Haig moment (an illegitimate yelp of: "I'm in charge !"), but things might have simply worked themselves out too. Posner doesn't have much faith in a reasonable solution coming about without heavy-handed judicial involvement. He sees it as a crisis of immense proportions, and thinks almost anything would be better than the uncertainty if the election wasn't over with and decided as soon as possible. Certainly, there was a lot of concern -- especially among politicians and in the media -- but the population as a whole seemed, as usual, basically indifferent. Few people actually participated in the election (only about half of all eligible voters -- an embarrassingly low turnout), and life went on as usual. Certainly, there would have been a legal and constitutional crisis if things weren't quickly resolved: Posner convincingly shows that electoral law (especially governing the Electoral College) is unbelievably confused and confusing. But would it have caused grave and lasting damage ? Posner melodramatically claims: "the new President would have started behind the eight ball" and mentions previous "poisoned" presidencies. Would this be unfortunate ? In some respects, yes. But it would also be deserved.
       Posner believes the new president's "'victory' would have been an empty one; he could not have governed effectively". Why this should be so is not clear. Posner mentions that "the new President would have been deprived of a transition period in which to organize his administration"; this is an inconvenience, but hardly a fatal one. Posner insists: "that there was a real and disturbing potential for disorder and temporary paralysis (I do not want to exaggerate) seems undeniable." He doesn't want to exaggerate ? But maybe he is. Every time the government lets the budget run out (an almost annual ritual in America) we wonder about the "potential for disorder and temporary paralysis" -- but things seem to work out without too much fuss. Yes, it's a different situation, but the point is the government and (unfortunately) the people deal with it. (The people of course shouldn't deal with it: they should vote the bums out of office and get real legislators.)
       Yes, the potential for catastrophe was there -- but showing the weaknesses of the system is, over the long term, only for the best, as that should force the system to be improved. As Posner shows, there is obvious room for improvement. The voting process itself (the type of machines used, etc.) needs to be improved, and one hopes that the small steps taken in this direction in the wake of the 2000 election will lead to actual changes.
       Perhaps the most useful parts of Breaking the Deadlock are the discussions of the curious Electoral College system. Posner correctly notes that: "the constitutional and statutory procedures for the election of the President by the Electoral College are incomplete, unclear, and unreliable". His proposed remedies (which do not include the often called-for abolition of the Electoral College) are sensible, and certainly his discussion of the surrounding issues useful.
       The most entertaining part of Breaking the Deadlock is the the now de rigeur demolition of "public intellectuals" -- in this case, those who commentated incessantly on the whole affair (see also Posner's Public Intellectuals and our review). Here it is specifically the "professorial commentators" -- and, in particular, Constitutional scholars he targets. Posner (half rue-, half glee-fully, one suspects) notes that "some professors of constitutional law do not know the Constitution -- that is, the document, as distinct from its enormous accretion of case law -- very well". Certainly, much that was foolish was spouted during those days, and Posner is right to criticize much of it. Still, he is not entirely above reproach either. His argument in this book that the Supreme Court did the right thing isn't completely reassuring since he also maintains the legal reasoning underpinning their actions was wrong -- a pragmatic but certainly contentious opinion (which we find highly disagreeable).
       We also differ strongly with Posner on one significant legal issue: he makes a big deal about Article II, section 1, clause 4 of the Constitution, providing that all electors (i.e. members of the Electoral College) shall vote on the same day. (This was at issue in the Florida because of the very real possibility that Florida could not decide on a slate of electors by the December 18 deadline.) He mentions that in 1960 Hawaii missed the deadline, appointing its electors after the official date -- but they were counted anyway. Posner maintains that "as they had no effect on the outcome of the election, there was no reason to make an issue of the state's tardiness", and notes that then Vice President Nixon suggested they be included, "without the intent of establishing a precedent" (it is unclear whether the italics are Posner's or Nixon's). We suggest that merely because counting Hawaii's electors did not effect the outcome there was still good reason to "make an issue of the state's tardiness" -- indeed, since it had no effect on the outcome this was the ideal situation in which to make an issue of their tardiness. More significantly, surely it does set a precedent, no matter what Nixon said (indeed, who cares what Nixon said here ?). Actions admittedly don't always speak louder than words, but to believe that the Hawaii-electors could be counted -- even with a Nixon-caveat -- and that this did not set a precedent seems absurd to us. Can Congress ignore the Constitution at will, as long as it says its actions aren't meant to set a precedent ? (Even if only done with respect to actions that have arguably no effects on outcomes this would lead to an untenable situation.)
       (Note, however, that the value of the precedent is certainly still an issue, even if it is accepted as a precedent -- and just because Congress acted unconstitutionally with regards to Hawaii in 1960 does not mean they should be allowed to do so again in future similar cases.)
       Posner correctly dismisses certain objections to the 2000 election outcome -- like the will-of-the-people idea (arguing that Gore deserved to be President because he had clearly won the popular vote nationwide) -- and does discuss most of the curious side-issues (the ridiculous "butterfly ballot", the legal (and political) strategies of those involved, etc.). At the very least, Breaking the Deadlock helps point out that the electoral laws (both on the local and on the Electoral College level) are an enormous mess and that something needs to be done about them.

       Posner the pragmatist worries about consequences:

I do not see what the point would have been of risking precipitating a political and constitutional crisis merely in order to fuss with a statistical tie that -- given the inherent subjectivity involved in hand counting spoiled ballots -- can never be untied.

       It is a curious statement. Posner acknowledges that there was a statistical tie: for all intents and purposes (well, all except one) there was no winner in Florida and there could not be. To call either the junior Bush or Gore the winner would not be an accurate reflection of the results. (And it is not merely hand counting that could not determine an actual winner: neither could machine counting. In mathematical terms, the difference in the number of votes ascribed to each candidate was too small to be statistically significant.) When a "winner" was finally determined, it was merely a legal fiction: a decision based on law (and laws) that did not reflect the truth (that, in fact, neither man won). (Note that naming Gore the winner would have also been a legal fiction, as illegitimate as making the junior Bush head of state.) Because of the weaknesses of the laws in dealing with situations such as these (as Posner notes, they aren't that rare), surely it is preferable to cause a crisis that leads to actual reform rather than add more legal layers that only confuse the issue (as both the Florida and U.S. Supreme Court's did with their theoretically precedent-setting rulings).
       While there are drawbacks to political and constitutional crises, it is not clear that one should shy away from them at all costs. Even if the resolution had finally only been reached in Congress (with or without the Floridian electors), after inordinate delay and partisan bickering, even if Strom Thurmond had been temporarily appointed President (a possibility Posner acknowledges was unlikely), one has to believe that American democracy is robust enough to withstand all that and more. As is, a solution was found fairly quickly, but it seems a remarkably poor one. The Supreme Court's decision is, from a purely legal standpoint -- and, over the long term, that is all that counts -- essentially indefensible (and, if it serves as a precedent, comes at a huge cost). In our opinion, a political and constitutional crisis would have been far preferable.
       Posner believes the cost would have been large, and so the actual outcome was for the best. Perhaps he is right. But one hopes that at the least there will be large-scale election reform (including the incorporation of many of Posner's sensible proposals). So far, there has been precious little -- especially with regard to the constitutional issues and the Electoral College. In the way Bush v. Gore was resolved, people believe it is done with; in fact, it is not. Posner correctly makes something of this -- but not nearly enough. If nothing else, the political or constitutional crisis Posner feared would have done much more to force people to address these issues. As it stands now, the confusion will only be all the greater the next time there is a similarly close election -- and when and if it finally does come to the crisis point, the mess will be all the messier.

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Links:

Breaking the Deadlock:

Princeton University Press publicity page

Reviews:

Richard A. Posner:

The complete review's Richard Posner page
Faculty page at the University of Chicago

Other books by Richard A. Posner under review:

Books about Richard Posner under review:

William Domnarski's biography, Richard Posner

Other books of interest under review:

Books on Legal subjects at the complete review

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About the Author:

Richard A. Posner is Chief Judge, U.S. Court of Appeals for the Seventh Circuit. He is also a senior lecturer at the University of Chicago Law School, and the author of many books.

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