At various points in the Florida election contretemps (the romp in the swamp, the minutiae in Volusia), partisans on both sides defended the virtue of their efforts via hypothetical role reversal: Our adversaries would make the same choices were they in our situation. Democrats believed that George W. Bush and his legal team would have pushed just as hard for manual recounts had Bush been the candidate trailing by a razor-thin margin. Republicans similarly were convinced that Al Gore’s lawyers would have maneuvered just as aggressively to forestall trolling for supposedly uncounted votes had Gore been the one with the lead.
The mental exercise of taking a stroll in another’s figurative shoes is one way to sift objective analysis from parochial bias. A more exacting thought experiment comes from the philosopher John Rawls, who argued that a just society emerges when its contours are determined by individuals blind to their own abilities or social position. Rawls famously labeled this perspective a “veil of ignorance” behind which lurks a fundamental question: What rules for society would you choose if you were utterly unaware of your standing within it?
A Rawlsian analysis ducks narrow questions of prepossessed moral relativism (were Bush’s and Gore’s actions in Florida reasonable, given the circumstances?) in favor of a detached assessment of what would be objectively fair (how would I judge the actions of each side and wish the dispute to be resolved if I didn’t know my own politics?). Integrity follows not from beliefs that my opponent would do likewise in my position, but from my willingness to endorse principles that would still seem fair if I didn’t know anyone’s position.
So assuming it’s possible to shed the psychological baggage of one’s predispositions, how does the Florida wrangle of the last month look in retrospect through this hypothetical veil of ignorance?
First and foremost, one sees plainly that the electoral outcome in Florida was, ultimately, a tie. For all the charges by the Gore side that voting irregularities gave the wrong candidate a lead, and all the claims by Bush supporters that his lead was genuine and legitimate, there is no escaping a simple truth: Election day balloting, like pre-election polling, is a form of measurement with imperfect reliability, and hence a perceptible margin of error. In the presidential voting in Florida, the margin of error clearly exceeded the margin of victory. The volume of disputed ballots and the likely arithmetic consequences of recounting them (using any standard) would fail to change this. A winner simply cannot be determined, and that will still be true when the Miami Herald gets around to its own counting.
But we had to have a winner, so the suits descended on Tallahassee, warmed up the laser printers, and churned out the briefs. The lawyers were talented, the arguments were often compelling, and there were countless moments of high drama as courts and bureaucrats pronounced fateful decisions. Yet little of this would pass a Rawlsian test of fairness.
Absent awareness of whether I was a Republican or a Democrat, I would surely reject the Bush camp’s preference for machine counts to manual recounts where ballots are in dispute. Assertions by election experts (including Bush’s expert witness in a Tallahassee courtroom) that hand counts are necessary and appropriate in close contests suggest that the margin of error in balloting is at least somewhat reduced when hand counts are judiciously employed. The argument by Bush’s lawyers that votes ought not count unless “correctly” cast in the first place, in the face of evidence about how voting machines facilitate voter error, is also unsustainable.
But through a veil of ignorance I would also reject Gore’s strategic emphasis on selective recounts in places where the demographics tilt Democrat. Gore’s lawyers reasonably argued that Florida law allows this, and also allows standards for counting ballots to differ across county lines. But from a Rawlsian distance it is difficult to justify correcting known flaws in some places but not others, and doing so in ways that vary with politics and proclivities of local officials in a position to manage the process.
A Rawlsian analysis points also to the conclusion that the consequential role played by the tight Electoral College calendar is indefensible. Someone blind to one’s own standing or ideology in the dispute would be hard pressed to endorse a process that privileges arbitrary deadlines over accuracy and completeness of balloting.
Of course, the U.S. Supreme Court didn’t have the luxury of working from philosophical first principles; it had to apply and interpret the law. This it did miserably, halting a flawed but fixable remedy rather than repairing it, and doing so under the guise of an argument about equal protection that first-year law students will regard as disingenuous.
But even as one reviles the politicization of the Supreme Court as a homely conclusion to a sordid process, the veil-of-ignorance perspective reminds us that neither Bush nor Gore have much moral high ground to claim here either. Neither candidate led his supporters through the romp in the swamp with a refined sense of justice that elevates principle over self-interest. Bush, I suspect, doesn’t really grasp the distinction. Gore might, but I imagine he’s more preoccupied with that Senate vote he cast back in 1986 to confirm Antonin Scalia’s Supreme Court nomination.
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