The Legacy of Bush v. Gore

There was a time when the Democratic party could choose its nominee as it saw fit. Time was when people would shrug and say, "Well, that's the rules of the game." This was arguably still somewhat true even as late as 1984, when neither Hart nor Mondale could muster a majority of pledged delegates, and the superdelegates handed the nomination to Mondale without any public uproar. And there are still terribly arcane rules by which votes are awarded to state delegations. But two things have changed since Bush v. Gore.

[I know this is a very lengthy post--but I hope you will read it thoughtfully and take it in the good-natured spirit it is written. Given the horse I'm backing in this race, my conclusion may surprise you...]

I'll state the first change now, and get to the last at the end of my post. I'll call this the "Gore" lesson: that the public--at least, the Democratic sector of the public--will not accept a situation where they perceive that unelected delegates have overruled elected delegates. It does not matter that the "elected" delegates are selected by wildly varying processes and are not awarded proportionally. The perception that the voice of the people has been betrayed will ruin the party.

Now I'm just going to come out and say it: for that reason alone, the Democratic party must seat the delegates selected by the voters in MI and FL. Some of you may be tempted at this point just to dismiss this post because I support Hillary. So listen to the wise words of The Law Talking Guy instead... In a comment to the post, Waiting for Gardner, from November 9, 2007, LTG wrote:

I think it is shocking that the Dems (and now the GOP too) have agreed that NH,NV,IA, and SC are allowed to have polls before 2/5, and all others are punished (except Wyoming, which has its GOP caucuses on 1/5, and nobody cares). The shocking thing is that they will disenfranchise Michigan and Florida voters for doing what other voters in other states can do.

LTG also reacted in horror at the specter of Obama "winning" the pledged delegate count only because MI and FL were excluded. In a comment to the post, To Super Tuesday... And Beyond! LTG wrote,

With all the effed-up rules for delegates, superdelegates, and the rest, a brokered convention would be a nightmare. Imagine if Obama were leading in elected delegates, but won because Michigan and Florida were denied seating. Or lost because of party elders and superdelegates. Mississippi Freedom Party, anyone? [My italics]

Some will point out that Obama and Edwards withdrew their names from the Michigan ballot on October 9, 2007 (although their campaigns later encouraged supporters to vote for "uncommitted"). Furthermore, NBC quoted an Obama campaign memo saying he had wanted to pull out of Florida too.

But their decision to pull their names from the ballot was curious. After all, everyone knew there was (and still is) a good chance that the delegates would ultimately be seated anyhow. As LTG wrote in an August 8, 2007 post, Et tu, Iowa?,

The parties have tried to forbid earlier primaries by claiming they won't seat delegates, but nobody takes that threat seriously. Besides which, the main benefit of the early votes was always the public perception of being a winner, not the delegates.

The real reason Obama and Edwards pulled their names was a strategic one. CNN's early analysis of the move by Obama and Edwards:

CNN's Senior Political Analyst Bill Schneider suggested the Democrats who withdrew may have calculated that it was simply in their best political interest to do so.
"If there's no campaign, the candidate most likely to win Michigan is Hillary Clinton," Schneider said. "Her Democratic rivals don't want a Clinton victory in Michigan to count. They want Iowa and New Hampshire, where they have a better chance of stopping Clinton, to count more."

Obama and Edwards made the stategic choice to try to kill any momentum Hillary might gain from Michigan, and they certainly succeeded. But to withdraw from the ballot, reap the benefits thereof, and then argue the results should not count because you were not on the ballot seems like trying to have your cake and eat it too. It certainly seems unfair to disenfranchise those who voted for Hillary just because Obama withdrew his name. The "Gore" lesson trumps everything: failing to "count all votes" in the public's mind (especially those from Florida) just won't fly anymore.

Here is my suggestion of a compromise, which feels the most in line with "counting all the votes" without letting an unelected clique overrule the people. The Democrats should seat the full delegations from Michigan and Florida as is--superdelegates, uncommitted delegates, and all--but then they should not permit any superdelegates from anywhere to participate in the first ballot. Using LTG's useful numbers, that means a vote by 3,584 pledged delegates, of which 1,792 would be needed to secure the nomination. If neither candidate can secure that magic number, then and only then would the voting would proceed to the second ballot, where superdelegates would be able to vote and break the tie. And yes, there is a possibility that the first ballot would not be determinative since there are 26 Edwards delegates and at least 55 uncommitted delegates from Michigan.

But Hillary has not suggested this path. She is focused on the number 2025. And that, I believe, is because of that second lesson from Bush v. Gore I alluded to earlier. I will call it the "Bush" lesson: that the first person who can reasonably claim to victory by the rules, even if they are unfair rules, often wins anyway--possession being 9/10 of the law. So long as it seemed to the public that Gore was trying to overturn a victory that had already happened, he had little chance of succeeding. I believe this is precisely what Hillary hopes to accomplish by racking up the superdelegates early and talking up 2025. And this saddens me.

Although the compromise I suggest likely favors Obama--as LTG explained in the last post of his I referenced, Michigan and Florida are not really the "ace in the hole" Hillary supporters might hope for--I feel it is the most democratic thing the Democrats can do. Whichever candidate wins needs to win the "Gore" way, not the "Bush" way. Given the history, this is more true for the Democrats than anyone else: it's not just who wins, but how they win. Here's hoping (wishful thinking, I know) that the Democratic Credentials Committee recognizes both lessons from Bush v. Gore, and heeds the right one.