A victory for passion over cynicism

The forces of democracy and anti-democracy were on full display in yesterday’s election.

Brendan O'Neill

Brendan O'Neill
chief political writer

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There were two forces at work in America yesterday. And the contrast between them could not have been more stark.

On one side, the forces of democracy, an estimated 135million of them. Aged 18 to 100, they stood in line for hours, some from as early as 4am, and even braved pouring rain (that climatic bête noire of election turnouts) to vote overwhelmingly against the politics of the past and for something new. On the other side, the forces of anti-democracy. Besuited and benighted ‘watchers’ from both the Obama and McCain camps who were convinced that fraudulent voters or a ‘Whitelash’ would jeopardise the election, and who hoped – certainly the McCainites did – that the election result would have to be decided in the rarefied courts far away from the rowdy, rain-sodden queues of the democratic process.

Democratic aspirations were pitted against elite fear and loathing; the desire of ordinary people to make a change in their world clashed with the want-to-be-ruling classes’ ‘cloud of suspicion’ over the electoral process (1). Thankfully, the forces of democracy won. Whatever you think of Obama (spiked is not a supporter), yesterday was a great day for the democratic instinct. There is still some discussion as to how many Americans voted, but experts agree it was the highest voter turnout since at least 1964 and possibly since 1908. Somewhere between 134 and 136.6million people cast their ballots, up from 122.3million in 2004 (the highest grand total of voters in an American election before yesterday). Voter registration was up amongst some of the most disenfranchised sections of American society, including blacks, and more young people voted than ever before (2). That is an astonishing achievement by anyone’s reckoning.

Yet as soon as it was known that voter turnout would be high, the elites of both the Democratic and Republican parties panicked. This was captured perfectly in a Fox News headline on Monday: ‘Expected high voter turnout has government officials, watchdog groups on alert.’ (3) The threatened outpouring of millions of voters on to the streets of America – some of whom were given chairs and umbrellas by schoolchildren to make their wait to vote more tolerable – was treated as a dangerous thing. In the days before the election, both McCainites and Obamaites began to discuss the electorate, not as the decider of America’s fate, but as the potential wrecker of the parties’ political plans.

McCain’s final-days strategy was to stoke up the spectre of ‘voter fraud’, of thousands and thousands of invented or even dead ‘voters’ possibly ‘stealing the election’ from Republicans. Some Republicans seemed to look upon mass voter turnout as a kind of natural disaster; one spokesman said it might cause ‘the kind of chaos you expect from a Category 5 hurricane’ (4). For their part, leading Democrats openly feared that a ‘Whitelash’ (racist voters) or Republican voter trickery would dent Obama’s chances of a clear victory. Democratic operators warned of some ‘ghastly trick’ by Republicans to ‘steal the election’ (5). According to one report, well-to-do Democrats have been visiting their doctors more over the past two weeks, claiming to be suffering from depression and anxiety over the possibility that the election might be stolen from under their noses; people have referred to it as Victory Will Still Be Snatched From Us Compulsive Disorder (6).

From McCain’s fear of fraud to the Democrats’ fear of the racist vote, both camps were certainly ‘on alert’ over the alleged hidden dangers of high voter turnout. Indeed, the widespread discussion of potential ‘voter fraud’ and ‘election theft’ – which dominated top-down debate in the final days of the campaign – gave the very strong impression that voting itself, the democratic act of choosing one’s leader, is somehow fraudulent, that elections involve theft and trickery more than debate and decision-making. In the weeks before the election, McCain warned that some voter-registration groups were ‘perpetrating one of the greatest frauds in voter history… maybe destroying the fabric of democracy’ (7). That was an extraordinary thing for an electoral candidate to say just before voting kicked off; effectively to declare that democracy is dead. As one observer said: ‘I don’t recall in recent history a presidential candidate before the fact trying to suggest in a nationally televised debate that the entire electoral system was under assault.’ (8)

McCain’s camp said that the activities of ACORN, a voter-organising group in minority and low-income communities, had put the entire election under a ‘cloud of suspicion’. That is because two weeks before the election it was disclosed that 30 per cent of the 1.3million voter registrations gathered by ACORN were faulty: one registration form had been filled out by ‘Mickey Mouse’; another by the starting line-up of the Dallas Cowboys (9). Yet as some sensible commentators have pointed out, fraudulent voter registration is not the same thing as fraudulent voting. It was highly unlikely that any of these nakedly dodgy registrations would make it on to the electoral registers.

A 2007 report by the non-partisan Brennan Center for Justice at the New York University School of Law found that voter fraud, though it happens, remains very rare in American politics: ‘It is more likely that an individual will be struck by lightning than he will impersonate another voter at the polls’, the report said (10). In some states, between 0.00004 and 0.00009 per cent of votes are found to be fraudulent – a statistically insignifcant number (11). If there are problems in American elections, they tend to be caused not by thieving, fraudulent voters destroying the fabric of democracy, but by ‘things like technological glitches, clerical errors or mistakes made by voters and by election officials’ (12). This was certainly the case yesterday, when there were long delays, temporary machine failures and power cuts. This showed that, in fact, it is the American state that is unprepared for democracy, finding it a struggle to accommodate the masses’ desire to exercise their democratic rights. It was only the diligence and determination of voters themselves that allowed yesterday’s vote to proceed relatively smoothly; so much for ‘fraudsters’.

Yet McCain’s complaint about potential fraud casting a ‘cloud of suspicion’ over democracy was not based on factual evidence, but on a political desire to legalise the political process. It is common for Republicans to complain about voter fraud, and for Democrats to complain about ‘voter suppression’; what was different this time round was the extent to which both sides raised the spectre of fraud and issued legal threats in advance of the election. As the New York Times reported, there has never been ‘this degree of skirmishing’ or ‘flurry of lawsuits’ before an election (13). In talking up potential fraud, the McCain camp – feeling itself on the losing side – was explicitly calling into question the legitimacy of the vote itself, the purity of the people’s mandate. The Lawyers’ Committee for Civil Rights argued that the McCainites were setting the table for ‘possible legal challenges of the election results’. For both Republicans and Democrats, expressing fears about voter antics was a pre-emptive attempt to invite the courts to ‘weigh in on tight races where the losing party may seek to raise real questions about the legitimacy of the vote’ (14).

It is quite something for the candidates in an election to plant seeds of doubt about the legitimacy of the election even before the voting has taken place. This demonstrates the extent to which the American elite is cut off from the American people. Not only did the candidates and their camps look upon voters as potentially fraudulent or racist, they openly questioned whether the voters’ choices and actions were legitimate. Both the Democrat and Republican machines devoted huge resources to campaigning for votes on one hand and spreading doubt about the purity of the voting process on the other – capturing the curious cocktail of their desire to win but also their disdain for the process by which winning might be achieved. Many Democrats have slated McCain for his most explicit denigration of the democratic process over the past two weeks, yet he may well have learned this trick from Democrats: since Bush’s alleged ‘theft’ of the election from Gore in 2000, Democrats (who were then on the losing side) have campaigned endlessly and legalistically around the issues of voter fraud and potential ‘electoral theft’ (15).

The rise of cynical legalism in the upper echelons of the two parties reveals the aloofness, even the creeping aristocraticism, of America’s party machines. Increasingly in America, political issues, including election results, have been resolved through legal means rather than democratic engagement. Such legalism has risen exponentially as America’s elite has been beset by crises of political legitimacy. As Matthew A Crenson and Benjamin Ginsberg argue in Downsizing Democracy: How America Sidelined its Citizens and Privatized its Public, since the Watergate scandal of 1972 – which led to the creation of an Office of the Independent Counsel with the power to investigate ‘unethical conduct on the part of public officials’ – both Democrats and Republicans have tended to use strategies of ‘revelation, investigation and prosecution’ to defeat their opponents rather than doing so through public debate and the mobilisation of public support. Courtesy of the new legalism, ‘Both parties have developed and demonstrated their capacity to drive their opponents from office without mobilizing or even consulting the electorate, which seemed a mere vestigial organ of the American body politic’ (16).

This legalism reached its nadir with the Supreme Court decision over who won the 2000 presidential election: Bush or Gore. As Crenson and Ginsberg argue, the ‘new peripheral status of the electorate was underlined by the Florida post-election struggle’, which was ‘fought outside of the electoral arena and without the participation of ordinary Americans’ (17). And despite the image today of the 2000 election being ‘stolen’ by Bush, in fact both the Republican and Democratic elites willingly bowed to the decision-making of the court, trusting it more than the people themselves. Together they spent a total of $10million on legal fees. When asked about the impact of public opinion polls on the post-2000 legal case, Gore said: ‘I’m quite sure that the polls don’t matter in this, because it’s a legal question.’ (18)

The 2000 debacle captured what lies behind the rise of legalism: the elites’ powerful sense that they lack legitimacy, that they have a flimsy mandate from or connection with the American people. Indeed, the ‘thief’ Bush did not go on to run riot in Washington after his victory over Gore, but rather instituted a backtracking, behind-the-scenes, public-avoiding presidency, because, as one study of ‘legalism after 2000’ argues, he sensed no mandate or legitimate power (19). Then, as now, legalism has both expressed a disdain for voters and been a crutch in the absence of true or meaningful political legitimacy.

Has Obama’s victory put paid to that? Certainly the American people showed yesterday that they have no desire whatever to be ‘a mere vestigial organ of the American body politic’. They voted in their tens of millions, and a clear majority favoured Obama. McCain’s plan to use legal means to challenge tight races, his anti-democratic instinct, has been defeated by the people’s own democratic actions. Possibly the most positive thing about the vote yesterday is that it was largely future-orientated: a rejection of the politics of yesterday, with its cynicism and pettiness, in favour of something grander. Yet a mandate is a two-way thing. It requires the support of the people, of course, but there must also be a programme, a set of ideas, to be mandated; and that is notable by its absence in the Obama camp. The American people have expressed a positive democratic sentiment, but it remains to be seen whether the crisis of legitimacy, the crisis of political mandate, will be resolved in American politics.

Brendan O’Neill is editor of spiked. Visit his website here. His satire on the green movement – Can I Recycle My Granny and 39 Other Eco-Dilemmas – is published by Hodder & Stoughton. (Buy this book from Amazon(UK).)

(1) McCain’s Warning About Voter Fraud Stokes a Fiery Campaign Even Further, New York Times, 26 October 2008

(2) Voter turnout best in generations, maybe a century, Associated Press, 5 November 2008

(3) Expected high voter turnout has government officials, watchdog groups on alert, Fox News, 3 November 2008

(4) McCain’s Warning About Voter Fraud Stokes a Fiery Campaign Even Further, New York Times, 26 October 2008

(5) They are dancing and cheering, but Barack Obama’s army is sick with anxiety, The Times (London), 3 November

(6) They are dancing and cheering, but Barack Obama’s army is sick with anxiety, The Times (London), 3 November

(7) McCain’s Warning About Voter Fraud Stokes a Fiery Campaign Even Further, New York Times, 26 October 2008

(8) McCain’s Warning About Voter Fraud Stokes a Fiery Campaign Even Further, New York Times, 26 October 2008

(9) McCain’s Warning About Voter Fraud Stokes a Fiery Campaign Even Further, New York Times, 26 October 2008

(10) ACORN controversy: voter fraud or mudslinging?, Associated Press, 18 October 2008

(11) ACORN controversy: voter fraud or mudslinging?, Associated Press, 18 October 2008

(12) ACORN controversy: voter fraud or mudslinging?, Associated Press, 18 October 2008

(13) McCain’s Warning About Voter Fraud Stokes a Fiery Campaign Even Further, New York Times, 26 October 2008

(14) McCain’s Warning About Voter Fraud Stokes a Fiery Campaign Even Further, New York Times, 26 October 2008

(15) See Was the 2004 election stolen?, Rolling Stone, 1 June 2006

(16) Downsizing Democracy: How America Sidelined its Citizens and Privatized its Public, Matthew A Crenson and Benjamin Ginsberg, JHU Press, 2002

(17) Downsizing Democracy: How America Sidelined its Citizens and Privatized its Public, Matthew A Crenson and Benjamin Ginsberg, JHU Press, 2002

(18) Downsizing Democracy: How America Sidelined its Citizens and Privatized its Public, Matthew A Crenson and Benjamin Ginsberg, JHU Press, 2002

(19) Adversarial Legalism, Robert Kagan, Harvard University Press, 2003

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

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