A Constitution strained but intact

The election is a severe test of America's checks-and-balances system. So far, it's working as intended.

The complicated machinery of the American political system, with its many levels designed to balance, check, and supplement each other, may now be under more strain than at any time since the Watergate crisis peaked in 1974.

As the extraordinary struggle between George W. Bush and Al Gore over Florida's votes nears its climax, one branch of government, the judiciary, could in essence name who will lead another, the executive. Much of the nation may be left dissatisfied by the outcome, convinced that Supreme Court justices acted in a partisan, not purely legal, spirit.

But this represents a constitutional process, not a crisis. So far the great engine of the United States is still puffing along as its designers intended. The Founding Fathers figured that democracy would be a messy business. Their genius was that they focused, not on eliminating partisan strife, but on containing and resolving it, and then moving on. "I don't think they would be at all upset about the fact that there's been some disagreement and cross-checking between the branches," says William Mayer, a political scientist at Northeastern University in Boston.

Of course, "some disagreement" may be putting it mildly. The past few days have seen a dizzying series of legal and political decisions. Since Friday, both candidates have seen their chances rise and plummet to a degree that almost defies metaphor. Comparing their experience to riding a roller coaster isn't enough. One moment they're riding a moon rocket into space. The next they're plunging in a bathyscaph to the bottom of the sea.

First the Florida Supreme Court allows hand counts, and gives Mr. Gore hope. Then the US Supreme Court stays the action, taking it away. And in the background is the Florida Legislature, prepared to vote its own electors if the legal process does not produce a clearcut result - or if, some say, it does not like the outcome.

Don't blame the structure of the government for bringing these institutions into conflict, say experts. Blame the vote. The 2000 presidential election was not just the closest in history. It was just about the closest that could be envisioned, given the Electoral College system. The unofficial difference in Florida, if hand counts already completed are included, is about 100 votes - a margin that would bring a race for county animal control officer into question.

If Washington, Adams, Franklin, et al, would be surprised by anything, it might be the speed with which the judiciary has moved to resolve vote issues. They envisioned a more passive and restrained legal system.

But over the course of the nation's history, the Supreme Court has developed into a more and more powerful institution - one that has aggregated to itself the right to rule on many of the nation's most important political questions.

The idea that judges are above politics is "largely a myth," says Professor Mayer.

In recent history, the US legal system has helped bring finality to political dramas that resisted solution. During Watergate, court actions allowed investigators access to the White House tapes and helped doom Nixon's presidency. One lesson widely drawn from Watergate was that "the system works." That may be true, say experts - but it also does not mean that courts can provide the best possible result.

At time of writing, the Supreme Court had not ruled whether the Florida Supreme Court erred in allowing continuing hand counts. Whatever it does, it cannot provide the finality of an accurate election day count. Its decision could result in a President Gore who Republicans feel won purely by legal efforts, or a President Bush shown to be the loser after news organizations count Florida ballots in months to come.

"The system works - but the result may not be beneficial," says Terry Sullivan, a political scientist at the University of North Carolina at Chapel Hill.

So far the public trusts the US Supreme Court to solve the current standoff more than it does Congress or the Florida Legislature. A Gallup poll finds that 61 percent of respondents want the matter decided by the nine justices. Only 17 percent said Congress should settle who won.

But by a narrow margin, the public continues to believe that hand counts in Florida should go forward. A recent ABC-Washington Post survey found 53 percent of respondents wanted them to continue. Forty-three percent wanted them to stop.

Thus, if the court rules in favor of Bush, much of the nation may believe it made the wrong choice - particularly if the vote is a 5-to-4 split along conservative/liberal lines.

"In the short term,... there [would] be a general perception that the court, like the political actors, is acting out of partisan motives," says Michael Dorf, a professor at the Columbia University School of Law in New York. "In the short term at least, that will reduce the court's credibility as a neutral arbiter."

In the longer run, the court has survived such controversial decisions as the Dred Scott case, which held that slaves could not be taken from their masters without due process of law and presaged the Civil War. And the high court may see itself as heading off a battle in Congress over two competing sets of Florida electors - a struggle which could take the current process into the crisis realm.

"A lot of people would breathe a sigh of relief and be grateful to the court because of the many other ways this election could conclude," says Cass Sundstein, of the University of Chicago Law School.

Staff writers Gail Russell Chaddock and Abraham McLaughlin contributed to this report.

(c) Copyright 2000. The Christian Science Publishing Society