Courting Trouble

Judging from the views of my respected co-authors in this report, American democracy stands indicted for its performance in November's election. Yet in several important respects, the system performed better in 2004 than it has in years. That's not easy for me to say after such a disheartening election day. But you cannot measure the health of a democracy simply by who wins. Voter turnout increased by an astonishing 12 percent, adding 15 million new voters, many from the inner cities. Racial minorities and younger voters turned out in larger numbers than ever before. The two major presidential candidates enjoyed ample, legitimately raised funding, including millions of small contributions raised on the Internet. The candidates posed stark, well-defined choices. A third-party protest candidate was available. The election delivered a clear winner. If John Kerry had won, liberals would be touting 2004 as the mother of all elections.

Don't get me wrong: American democracy is far from robust. President Bush's narrow lead in Ohio obscured the fact that the same problems with vote tabulation that plagued the 2000 election in Florida were present this time around. If the election had been a little closer, we would have had five Floridas, with lawyers and courts deciding what ballots got counted in Ohio, New Mexico, Nevada, New Hampshire, and Iowa. Instead of butterfly ballots and hanging chads, we had misfiring electronic machines with no paper records, hundreds of thousands of disputed provisional paper ballots with no national standard for counting them, appallingly long lines to vote (especially in inner-city precincts), missing registration cards, and a nationwide inability to handle the surge of new voters smoothly. If the system nearly breaks down when 59 percent of the electorate votes, what would happen if we achieved 70-percent turnout similar to that in many European elections? We desperately need a congressional overhaul of the presidential voting process, from modern voting machines we can trust to uniform, same-day registration procedures, from a standardized provisional ballot that ensures that all qualified votes are counted under the same ground rules to a shift of election day to a weekend or a holiday so working people can vote conveniently.

That 18th-century relic -- the Electoral College -- is also waiting to cause mischief. A shift of about 40,000 total votes in New Mexico, Nevada, Iowa, and New Hampshire would have resulted in an electoral tie of 269 to 269. Even more dramatically, a shift of fewer than 60,000 votes in Ohio would have elected Kerry, despite Bush's 3.5 million nationwide majority. I would have chuckled at the irony of deposing Bush -- a man whose claim to the presidency was based on subverting democracy -- without winning the popular vote, but it would have been terrible for democracy, and it could happen in 2008 to either candidate.

Given the appalling collapse of the Supreme Court in 2000, and the less than edifying performance of courts this time around in dealing with standards for counting provisional ballots, felon disenfranchisement, and reliable voting machines, it is madness to leave close elections to judicial determination. We should be concentrating on the enactment of nationwide, reasonable presidential voting rules that should make it unnecessary in the future to turn to courts to decide close elections. Equally important, we should be rethinking our overdependence on courts as frontline implementers of liberal values.

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We are at the close of a 50-year cycle during which Democrats and Republicans have pursued dramatically different domestic agendas. Democrats have championed the social values of the Enlightenment -- toleration, secularism, equality, and free expression. Republicans, meanwhile, have embraced Adam Smith, resisting the government wealth transfers and market regulation often sought by Democrats in the name of equality. In the end, both political parties won their core struggle. Democrats succeeded in dismantling barriers to equality based on stereotype, building a powerful system of free expression and respect for cultural diversity while walling religion off from the exercise of public power. At the same time, Republicans succeeded in enshrining the free market as the engine of economic organization. But the two parties used very different strategies to achieve their victories.

Republicans concentrated on politics, largely because by the end of Franklin Delano Roosevelt's fourth term they realized there was no chance of undoing the New Deal in the courts. After absorbing a terrible initial defeat in 1964, Republicans began the long job of rebuilding their political base. Democrats, almost always acting on behalf of minorities doomed to short-run defeat in the political arena, turned to the courts. Year after year, the judiciary delivered a steady stream of decisions finding liberal, counter-majoritarian values in that quintessential Enlightenment document, the Bill of Rights.

The 2004 election saw the Democrats' 50-year practice of successfully advancing Enlightenment values through the courts instead of through the political process come home to roost. Infuriated by court decisions limiting their power to use law to advance their religious beliefs, a relatively thin slice of the population -- probably just 10 percent to 15 percent, but large enough to wield the balance of electoral power this time around -- rose up and voted against their economic interests, throwing Ohio and the election to George W. Bush.

Whether the issue was abortion, gay rights, the wall between church and state, or pornography, the common denominator of the dramatically increased rural/evangelical vote was rage at judicially imposed limits on the political expression of religious values. How Democrats deal with that rage, and break through it to talk to the red states about economic justice, toleration, and basic fairness is one of the great political challenges of our time.

Of course, Democrats could simply ignore the evangelicals and their rural allies, as these blocs may well lose their balance-of-power status once September 11 security concerns ebb. But that's a huge gamble, one that writes off the South and much of the rural heartland. Defeat in 2004 poses an overdue challenge to Democrats. Their long reliance on the courts as the principal forum to advance Enlightenment values may well have succeeded itself out of usefulness. Much of the liberal agenda initially advanced in the courts has become part of the national consensus. Free speech, freedom from stereotypical discrimination, religious toleration, deep commitment to individualism -- issues that once were intensely contested are now the common currency of national discourse.

In retrospect, the enduring success of liberal thought in reshaping America has almost always involved initial counter-majoritarian court victories, followed by effective political organization designed to convince the majority that the court victories were morally correct. Brown v. Board of Education was followed by Martin Luther King Jr.'s remarkable grass-roots mobilization on behalf of the moral imperative of ending American apartheid. Ruth Bader Ginsburg's pathbreaking Supreme Court victories on behalf of women were followed by a brilliantly orchestrated popular movement explaining why it was unfair to lock women into stereotypical roles. Pioneering legal victories protecting the right to vote were followed by nationwide political campaigns to explain why it was morally wrong to exclude people of color and the poor from the democratic process. A similar pattern prevailed with the debate over protecting free speech.

Two important segments of the liberal social agenda -- abortion and gay rights -- remain trapped in a political limbo between the initial judicial articulation of a counter-majoritarian norm by courts and moral acceptance by the larger community. Frankly, liberals have gotten out of the habit of translating judicial victories into moral consensus through political discussion. That task can no longer be ignored if we hope to reach out to natural economic allies in the red states. But the boundaries of such discussion must be shaped, not by judicial fiat but by an ability to make a persuasive moral case to the majority. Power to shape the discussion must be transferred from ideologues to pragmatists. In short, begin working at the grass roots to build a moral consensus around civil unions and a woman's basic right to choose. But stop sounding like abortion is a sacrament, and stop insisting on judicially imposed gay marriage as a symbolic victory.

Finally, some elements of the judicially imposed liberal social agenda may not be worth defending. While abortion and gay marriage undoubtedly played a role in mobilizing the rural/evangelical outpouring that cost the Democrats Ohio and the 2004 election, a driving force was rage at judicial decisions preventing government-sponsored religious expression. Nondenominational prayer services at graduation or before football games, displays of the Ten Commandments in courthouse lobbies or crèches and Christmas trees on public lands, the phrase “under God” in the pledge of allegiance -- all fell under the secular knife.

I have no quarrel with the analytic correctness of the decisions. Maintaining a strict wall between church and state has served the nation well. But, seriously, as long as all religions are treated equally, do you really view such exercises in religious symbolism as a threat to our way of life? When I was national legal director of the American Civil Liberties Union during the Reagan years and the board had sent me out to argue my umpteenth crèche case, I wrote a memo saying that I didn't take the job to stamp out the Virgin Mary. Is it worth alienating people in the red states who might vote for a minimum-wage bill or back economic policies that do not savage the poor just to make a lawyer's point about separating church and state?

And I'll go further and really get myself into trouble with my friends. Are we so sure it is a good idea to freeze religious institutions out of the delivery of social services to the poor? For what it's worth, my experience is that it takes an intense commitment verging on love to crack the terrible shell that the nation's moral failure has built around the inner cities. The best I've seen from most secular bureaucrats is competence -- and too often, their competence is overwhelmed by the enormity of the task. Religious institutions have the capacity for the intense commitment that is needed to change a life. Of course, there are risks -- proselytization, intimidation, abuse -- but why not take a chance? The result could be the mending of the breach between Democrats and millions of natural economic allies in the red states, and more effective social services for the poor in the blue ones.

In short, what we need is old-fashioned political shoe leather designed to convince the majority of the moral correctness of a women's right to choose and the moral correctness of toleration of gay lifestyle -- without the freight of an obsessive preoccupation with church-state symbolism. But that argument is merely the appetizer for the main course, a serious economic agenda that recognizes the primacy of markets, tempered for the better by regulation and social investment, but also includes a practical means of breaking through to the hardcore poor.

Burt Neuborne is the John Norton Pomeroy Professor of Law and legal director of the Brennan Center for Justice at the New York University School of Law.