Attorney Cass Sunstein Explains the Legal Aspects of the Election Controversy in Florida.

DATE November 15, 2000 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Cass Sunstein discusses the legal aspects of the
election controversy in Florida
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

The election news has been breaking at an astonishing pace. We're going to
step back and examine some of the legal issues and precedents that can help us
understand the latest news. My guest, Cass Sunstein, teaches constitutional
law at the University of Chicago, where he's a professor of law. He's the
author of more than 10 books, and has testified before a number of national
and local government bodies on issues involving separation of powers,
administrative law and constitutional law.

The day started with the news that Florida's secretary of State, Katherine
Harris, had petitioned the state Supreme Court to take on all the legal
decisions surrounding the contested election. I spoke with Sunstein this
morning and asked him to explain the role of a state supreme court in a
national election.

Professor CASS SUNSTEIN (University of Chicago): Well, the state supreme
court is supposed to resolve issues that are disputed after there's been a
decision by the lower court. It's the final court in the land, in that
particular land. What she's asked that court to do is to assume kind of
original jurisdiction, it sounds like; that is, to take the cases before
there's been a decision by a lower court, which is extremely unusual. I guess
she's afraid of inconsistent and multiple rulings.

GROSS: Is it unprecedented to ask a state supreme court to take on cases
before the cases have been resolved on a lower level?

Prof. SUNSTEIN: Not unprecedented. In some states, including at the national
level, there's what's called original jurisdiction, which means sometimes,
very unusual circumstances, you can get the case before there's been a lower
court decision. I don't know if there's a procedure for that in Florida, and
this kind of general assumption of jurisdiction that she's asking for
is--extraordinary is the right word.

GROSS: Do you think it's an appropriate request?

Prof. SUNSTEIN: Well, I think as a matter of law, it's closer to
inappropriate than as a matter of policy. As a matter of law, it's really,
really unusual for a state supreme court to get involved before there have
been lower court decisions and before there's been some fact finding. And
some of the claims that are in the lower courts involve disputed issues of
fact.

As a matter of kind of policy, you can understand why she's doing this, which
is she's trying to speed things up, which is a good goal, and she's trying to
prevent inconsistent rulings so that people know what they're supposed to do,
which is an even better goal.

GROSS: Now where would you appeal after the state supreme court if one party
or the other decides to appeal a decision?

Prof. SUNSTEIN: This is a very important point. The only place you can
appeal to is the United States Supreme Court, and since there don't seem to be
any federal issues here--these are all state legal issues--the Florida Supreme
Court decision is final. Now the Bush campaign has had a parallel lawsuit in
the federal court, trying to get the federal court to make the procedure go
the way they want it to. But the federal court refused to do that, and that's
likely to be upheld on appeal because there isn't really much of a federal
issue. These are state law issues. So for the moment in Florida, unless
something really surprising happens, this is all state law, state court;
Florida Supreme Court is the highest court of the land.

GROSS: Explain why it can't be a federal issues, 'cause it's a very confusing
thing. The most important federal issue is who is the next president, and yet
a federal court can't enter into the decisions of the Florida vote.

Prof. SUNSTEIN: OK. This is--it sounds a little more complicated than it
actually is. If there's a constitutional question, like if someone's
constitutional rights are being violated, or if there's an issue of ordinary
federal law, like if someone's civil rights are being violated, then the
federal court would get involved. Or if there's a question about the
interpretation of federal law governing who's going to be the president, then
the federal court would get involved.

But at this stage in Florida, all the issues have to do with how we count
votes in Florida. In a way, it's funny because they're kind of local, small
issues of Florida law. And in a way, it's kind of wonderful because this
shows federalism in action. Under federal law, the determination of how a
state has gone is really a matter of state law, which is how the founders of
the Constitution intended it to be.

So there are some federal issues in the picture, but none of them are really
being pressed by either camp within Florida courts. The issue is: How do you
count votes? And: What is the role of the manual recount? And: What about
the claim that these ballots aren't good because people can't understand them?
There aren't federal laws that govern any of those questions. They're all
matters of state law.

GROSS: But some individuals might say that their federal rights have been
denied because they voted, and yet the vote isn't getting registered. Might
that become a suit that goes to the Supreme Court?

Prof. SUNSTEIN: You know, we could imagine a few federal cases that would get
to the Supreme Court. I think they're pretty unlikely to succeed, but one
claim that Governor Bush is making is a federal issue that could possibly go
to the Supreme Court. He's claiming that the system of manual recounts is so
arbitrary and random that it violates his own constitutional rights. And
that's what he argued in a federal court in trying to stop the manual
recounts. Now since manual recounts aren't the most unusual thing in the
world, it's hard to say that even a somewhat arbitrary system of manual
recounts violates Governor Bush's constitutional rights. That's why he
lost--is likely to lose.

Now some people claim that they were denied the right to vote on the basis of
their skin color--and some people are claiming that--then that is potentially
a federal issue that could go to the Supreme Court. On the facts that have
come out thus far, you can understand why people are making this claim, but
the evidence probably isn't, at this stage, good enough to make for, you know,
a real demonstration that people were excluded from the vote because of their
skin color.

There are other people who could make a federal claim that because the
ballot is so nutty and impossible to follow that their federal constitutional
rights to vote have been compromised. As you say, that's the third of the set
of federal issues I'm discussing.

GROSS: Mm-hmm.

Prof. SUNSTEIN: Now that one might sound complicated. It's pretty simple.
If, in fact, the state--let's say Massachusetts--gave a ballot that was so
confusing that people thought they were voting for Gore but they were
actually voting for Bush or Buchanan, there would be a good, federal,
constitutional claim that their rights had been violated. Here it's unlikely
that that rises to that level. And this is the reason. It is a pretty
confusing ballot, but by all accounts, over 90 percent of people could
understand it. And the fact that a minority--not trivial and not racial--you
know, a minority of people couldn't understand it doesn't make for a
constitutional violation. The Supreme Court's been pretty clear that
confusion by voters is not a federal constitutional violation.

The real problem is not that the voters' constitutional rights have been
violated. The real problem is that their state law rights might have been
violated because state law seems to require that the will of the people be
expressed through the ballot procedure. And it's not clear that that's
happened.

GROSS: Well, another federal constitutional question. Say several people
file suits saying that these ballots discriminate against the elderly because
the elderly, many of them, can't see as clearly. Maybe they have arthritis;
they can't punch the card as well. Would that be a case?

Prof. SUNSTEIN: Probably not. If it's the case that older people have
trouble understanding something because their--and we're talking about
generalizations here, not every older person, if--partly because they're
slower or their eyes don't work quite so well, a ballot that is harder for
them than for younger people or people who are faster or have better
eyesight, that isn't a federal constitutional problem. I mean, if you have a
law that said older people can't vote or older people have to take a slow
train to the ballot box; if it explicitly discriminated against older people,
then there would probably be a problem. But if it's a ballot that's more
confusing to older people than to younger people, I don't think we have to
worry much about a federal constitutional violation.

GROSS: If you're just joining us, my guest is Cass Sunstein. He's a
professor of law at the University of Chicago, where he teaches
constitutional law.

So, historically, voting has been a state-law issue. And as we can see in
this election, states have different laws and different ballots and different
styles of voting. Why is it, historically, that voting is a state issue and
not a federal issue? Why is it that the laws vary from state to state and
even the mechanisms for voting vary from state to state?

Prof. SUNSTEIN: Well, it's partly just out of respect for our federal
system. And one of the really great things about this not-so-great tie is
that people are focusing on what our system of democracy is really about and
how we might want to change it, if we want to. The old understanding, which
is the current one, though it may be changed in the next few years, is that
the national government should get involved only when it really needs to.
And that's why we have pollution laws and national defense at the federal
level. But that when there's no special need for national involvement, then
states can make their own choices, so long as they don't violate the
Constitution.

Now it's pretty complicated to have the center, as this is the sort of thing
Republicans reasonably say--to have the center settling things for all of the
states, especially because local circumstances are different. So if Florida
wants to have one system and New York wants to have a somewhat different
system, our normal thought is that these are well adapted, we hope, to the
situation of the different populations. You might think Nebraska doesn't
have to have the same voting system as New York just because the needs are
different. It's less crowded. You might want to have special rules for New
York or Nebraska. And so Florida has its own particular concerns growing,
undoubtedly, out of the fact that there's a large immigrant population and a
large elderly population. And the rules that are well suited to Florida
probably aren't perfectly suited to California or Idaho.

GROSS: Do you think that this crazy election is going to lead to
reconsideration of certain state voting laws or lead for a national campaign
of reform in election law and to make things more standard?

Prof. SUNSTEIN: I do think we'll see that. And there are a couple of things
to keep in mind. One is the system, really, isn't broken. We've had a
statistical tie, basically. And it's very odd. It hasn't happened--anything
like this for 100 years. So we ought not, I think, to overreact to a
particular, real anomaly.

On the other hand, I think one problem has been uncovered that is worth
addressing, which is that our system for counting ballots is not only not
uniform, it's pretty antiquated. So I'm sure a lot of people listening, like
probably the two of us, went into booths that weren't really high-tech. And,
you know, they say if you can put a man on the moon, you ought to be able to
have a pretty simple, high-tech voting system. We have an old one that's full
of error, not because of fraud or anything like that, but just because of
randomness. And I wouldn't be at all surprised to see a real movement for
greater uniformity and greater modernness. We should see modernization of
the voting booth.

GROSS: My guest is Cass Sunstein. He's a professor of law at the University
of Chicago. We'll talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Cass Sunstein. He's a professor of law at the University
of Chicago.

Both the Democrats and Republicans have been challenging decisions in the
courts. At the very beginning of the election-result process, everybody was
saying it's really important to try to keep the election out of the courts.
Why do so many people think it's important to try to keep the election out of
the courts?

Prof. SUNSTEIN: Well, I think there are two things. Some people think that
judges are not politically accountable and that we don't want them to decide
who our president is. So they really don't trust judicial neutrality. And
other people think that this is a recipe for endless delay and maneuvering and
strategizing. There are two, really, different complaints. And they're easy
to understand.

I don't think that we should be as worried as we've been about getting things
into the courts. And the fact that we shouldn't worry about that so much is
kind of proved by the interest of both Governor Bush and Vice President Gore
in using courts not to get courts to choose the president that the court likes
but to get the courts to settle legal issues; to make sure the election was
lawful.

If we're worried about delay, and we ought to be, the Florida courts are
already showing they're going to do this really fast. They're making
decisions as rapidly as possible; often within a day. And if we're worried
about judicial bias, I think the role of the judge is a pretty good insulation
against bias. And these--the Florida law isn't as open ended as you might
think. So when there's a challenge brought, there are often words and
precedents that discipline the judge's decision. So people don't like delay
and they don't like judges making their own value judgments. But in Florida,
I think those are overrated concerns.

GROSS: Can you give us an example where you think precedent disciplined the
judge's decision?

Prof. SUNSTEIN: Well, the big issue raised by many voters is whether the
ballots are--the butterfly ballots are too confusing and therefore require
the election to be voided. Now under the Florida precedent, you can void an
election but only under really rare circumstances where the will of the
people has been thwarted because of some violation of the law. Now that
basic framework gets you, you know, 90 percent of the way home. The question
is: Has the will of the people been thwarted in Florida? And there you have
to investigate the facts to see. And then you have to ask whether the
statute's been violated, and the statute has some criteria to test whether
there's been a violation. And then you have to ask whether it's appropriate
for the court to void the election. And the court has suggested a strong
presumption against doing that. The court doesn't like voiding elections.
And with all that material there, I don't think it matters a whole lot whether
there's a Democratic judge or a Republican judge.

On this particular issue, the butterfly ballot, the precedence suggests it's
a real uphill battle for those who are challenging their votes. But if they
can show that a large number of people were really confused and that's what
made the difference, then Governor Bush is going to have a problem.

GROSS: Now there was that issue, which I have been hearing less about
lately--about whether the ballot--the butterfly ballot in Palm Beach County
was illegal because the law says that the punch has to be to the right of the
candidate's name, whereas the punch was to the left of several candidates
names, including Pat Buchanan. And a lot of people claimed that they meant
to vote for the Gore-Lieberman ticket and, instead, voted for Buchanan
because of that confusing placement of the punch.

Prof. SUNSTEIN: Yeah. The focus has shifted. This hasn't been remarked too
much, but the focus has been shifted in the last day from the concerns about
the butterfly ballot to the recounts. And it's important to see that these
are really quite different issues. The butterfly ballot has prompted two
complaints. One is that it wasn't on the right of everybody's name, which
Florida law seems to require, though that's not entirely clear. And the other
dispute is the people couldn't understand it and so the will of the people was
thwarted, which is a separate basis for challenging the butterfly ballot.

These recounts have nothing to do with the butterfly ballot. And what is
thought is that machines are imperfect and sometimes they won't pick up votes
that are real because the punch didn't go completely right; that the naked eye
can get it really well. And so I think the Gore strategy right now is to see
if manual recount can put him over the top even without challenging the
ballot, then the ballot issue is moot.

GROSS: So do you think that the ballot issue can't come into play anymore or
that it still might come into play?

Prof. SUNSTEIN: Well, it's a great question. Gore has several legal
strategies, and I think he's aware that the American people are going to run
out of patience pretty soon. So he's not going to get many bites at the
apple. If he loses on the recount, which he might. We don't know. And if
the absentee ballots don't come out his way, then he has a choice whether to
mount a separate legal challenge to the butterfly ballot. Now in a way, that
choice has already been made by voters, who are not allied with Vice President
Gore, who have brought their own separate challenges to the butterfly ballot.
But if Vice President Gore concedes, after--if the recount and absentee ballot
counting fails him; if he concedes, it's very unlikely the court would
invalidate the election.

GROSS: The suit that you're mentioning is the one where Alan Dershowitz
is representing several voters in Palm Beach County?

Prof. SUNSTEIN: I'm not sure what, exactly, Dershowitz is claiming. But
there is a separate suit by voters in Palm Beach County, contending that they
couldn't understand the ballot and contending also that the names weren't all
to the right--the punch place wasn't all to the right of the names and so
that the ballot is an illegal ballot. That is not a ridiculous claim under
the Florida precedence. And I think if Gore doesn't win on the recount and
the absentees, which we'll know by Friday or Saturday, then he's got a really
tough kind of political, legal call, which is whether to participate in the
challenge to the ballot. What's really significant is that the legal
challenge to the ballot isn't bad. As a matter of Florida law, there's
support for it if he can show on the facts that a lot of people are confused
by it. Is it a winner? A hunch is, probably not. But that's a very
tentative hunch. So he's going to have to decide, if he's in that position,
whether to take his chances with a legitimate legal claim or whether to try to
get out as graciously as he can.

GROSS: One possible remedy, if that ballot was found to be illegal, would
be, say, another election in that county. It seems very improbable that that
would ever happen. And it seems that law and opinion in this country is very
biased against a second election. What are some of the precedents that
oppose a second election?

Prof. SUNSTEIN: Well, the Florida court has given clear indication that
second elections can be required in circumstances where the will of the
people is thwarted. It hasn't happened much in the history of the country,
but it has happened in the face of, you know, real violations and
unreliability. At least once in recent years the--not in Florida--I think the
reason the court wouldn't do it is that to get a more accurate count through a
new election than what we have through this messy process we've ended is very
unlikely. With the new election, it's kind of the stuff of science fiction.
You're trying to reproduce a situation that went wrong because of bad ballots.

But time has changed and how to get this to be reliable is a real mess. I
mean, for one thing, who's gonna be allowed to vote? Is it just the people
who voted originally or is it everyone. If it's everyone, then you'll get all
sorts of new voters, which will produce really legitimate complaints,
especially from Governor Bush. If it's everyone who voted and no one else,
then there's going to be at least a bit of a mess to make sure that no one's
there who wasn't there before. And also, the conditions are different. The
Nader voters might well say, `Well, I'm gonna vote for Bush. I'm gonna vote
for Gore, maybe; Bush, maybe.' If the ballot's bad, they'll get confused
again. But the Nader people are highly likely to vote for Gore and that will
mess things up from the standpoint of trying to replicate the conditions of
the first one without the bad ballot, which is what the judge would be after.
So I think new elections are a bit of a nightmare and unlikely in the extreme.

GROSS: We'll hear more from law Professor Cass Sunstein in the second half
of the show. I'm Terry Gross and this is FRESH AIR.

(Announcements)

(Soundbite of music)

GROSS: Coming up, legal precedence pertaining to manual recounts. We
continue our talk about the election and the courts with constitutional law
expert Cass Sunstein.

(Soundbite of music)

GROSS: This is FRESH AIR. I'm Terry Gross. Let's continue our conversation
about the courts and the contested election with Cass Sunstein. He's a
professor at the University of Chicago, where he teaches constitutional law.
Our conversation was recorded this morning.

Let's look at the controversy over hand counts. And I say the controversy.
There's many controversies pertaining to the hand counts. Let's start with
the one about when it's appropriate to do a hand count. What kind of
precedent are we looking at here, constitutionally and on a statewide level?

Prof. SUNSTEIN: Well, there's no institutional rules on hand counts as a
matter of federal law. All this is really left to the states. And I can tell
you what Florida seems to think through its laws. Florida seems to like hand
counts. It seems to think that manual counts are more reliable than machines.
And so the Florida laws says if the people in charge, the Canvassing
Commission, think that there's a problem, they can do a hand count. And
that's why they're doing it. So as a matter of Florida law, we know Florida
law likes hand counts; thinks they're more reliable.

The problem is what Governor Bush is rightly concerned about, that any hand
counts is going to pick up more votes than the computer did just because you
can inspect by the eye and find things that the computer couldn't. And if you
restrict the hand count to areas where Gore was really popular, you're going
to have a big inflation of Gore votes in a way that might not produce real
accuracy because you didn't do hand counts in areas in which Bush was really
popular. Now Bush is kind of stuck on that because he didn't ask for hand
counts in the required time. But I think he's afraid if you do selective hand
counts, you may end up with a less accurate outcome than before because you
find these new Gore votes but you didn't search and look for new Bush votes by
looking in the other areas. And so a selective hand count has a lot of
problems. On the other hand, under Florida law, the selective hand count is
entirely legitimate.

GROSS: Well, why isn't anybody saying, `Let's do a statewide hand count so
that we're not just focusing on a Republican or a Democratic county'?

Prof. SUNSTEIN: It's a great question. And here's why. Gore doesn't want a
statewide hand count because he thinks the hand count is needed only in these
particular areas where he thinks he was pretty popular. Bush can't ask for a
hand count because then he's losing the high ground of principle, which is the
anti-hand count position. So neither side has an incentive to ask for a
Florida-wide hand count. Though, as between the Florida-wide hand count and a
selective hand count, it's very possible the Florida-wide hand count is more
accurate because if you just count by hand in areas where Gore was popular,
you'll inflate the Gore vote in a way artificially because hands and eyes pick
up things that computers can't, at least at this state of technology.

GROSS: Now the Republicans are saying that hand counts in Florida with the
system that they have are too subjective, they're not fair and accurate. Has
that been an issue in previous elections?

Prof. SUNSTEIN: No. This is--here we're now really on a new question, and
it's a good, hard question, which is the advantages and disadvantages of hand
counts. I think Governor Bush is in a way overstating it. He has a point,
but it's a little more hysterical in how it's being presented than reality
bears out. The fear point is that a hand count can be inaccurate, both
because of subjectivity and bias; you know, these are human beings who are
prone to mistake and maybe have a political interest. And also, he's saying
that it may be that if you touch the ballots a lot, you'll start pushing
things out just by accident, so the ballot won't look exactly like the voter
did it once you're handling it.

These are probably overstated concerns because it's not easy, unless you have
long fingernails and are really malicious, to alter a ballot to look exactly
like you want it to when someone else has already marked it up. I think the
real concern is not the bias issue or the error issue; it's the selectivity of
the recount. That's what the problem Bush is concerned with is.

On the other hand, there really aren't precedents that support Bush's
objection here. And while Florida hasn't litigated this, we don't have court
decisions on it, the Florida state law seems to suggest manual counts are
better than machine counts. Now what's messing this up is the secretary of
State wants to get this over with pretty quickly, so there's a conflict
between the secretary of State who wants to wrap it in and the more local
areas who want to get accurate hand counts.

GROSS: Is a machine any more or less subjective than human beings in this
kind of card punch type of system? For example--I think a lot of people have
experienced this--if you have a dollar bill and you're trying to put it in one
of those change machines, or trying to use one of those dollar machines to get
a ticket for like the train like some cities have, some of those dollars are
old and they won't be accepted by the machine. You can buy anything with that
dollar. It is inarguably a dollar, but the machine might still reject it.

Prof. SUNSTEIN: Yeah, it's terrible. It happened to me just yesterday. And
that's a really good analogy. If you want a candy bar, sometimes the machine
will not trust--believe your dollar is a dollar even if you, you know, try
hard to stick it in there. And that's exactly what's happening here. The
machines often--well, at least in enough percentage of cases to make a
difference, possibly--the machines won't accept it, even though it's real.
What we should think is that there are two kinds of mistakes. One is the
mistake from the machine's failure to recognize the ballot. And we've already
got numbers suggesting that happened. And then the other error is from human
error, which I would think would be much more likely to be mistake than bias,
though it's possible there's going to be bias, too. So no system is perfect.
And we haven't had to worry about the imperfections in our system because our
elections haven't been so, you know, incredibly close before.

The Florida law seems to like hand counts better than machines. It seems to
make the judgment that hand counts are more accurate than machines. In the
abstract, we have to know a lot about their machines and their hand counters
to know. If some people think, as some of the Bush people are saying, that
machines are just more accurate than hand counts, you know, they don't know
enough to say that. If Gore people are saying, hand counts are just more
accurate than machines, they don't know enough to say that either. Gore has
the better argument on Florida law, but we have to know a lot of the counters
and machines to know who's right on the facts.

GROSS: What kind of legal precedent do we have to help guide in the decision
of how swinging chads and hanging chads and pregnant chads and all that should
be considered in a hand count?

Prof. SUNSTEIN: With respect to the chads, which is the new popular
word--maybe many boys and girls will find themselves named Chad as a result of
this--at least boys--the legal precedents are really thin. I don't think
there's anything in Florida law that says how you handle these chads. It's
just a matter of kind of common sense, if you can see that someone made a
punch--and there is a degree of subjectivity there. If you have good counters
who aren't biased, it's not all that complicated to see whether some of the
punch was made or not. So I think it's really more a kind of question of
fact; what the thing looks like; another question of law. You could have
legal limitations on what individual judgments would be made. This is a
really tiny legal question. So tiny it's never been litigated. But the
presidency of the United States may turn on it.

GROSS: Any other thoughts that you have that we should keep in mind as we
follow the whole chad drama as it unfolds?

Prof. SUNSTEIN: Well, what I would watch for is acts of warfare on the one
hand, or statesmanship on the other by both sides. So far the two have been
really entrenched and increasingly entrenched in a way as the legal teams take
over. And we've had kind of few statements by either side indicating what
some of their behavior seems to indicate, which is a commitment by both to
getting this over quickly, to trying to unify the country once it's over
quickly, to resting as much as possible on good faith interpretations of
Florida law.

It's really important to know that thus far, the Gore position has been
extremely reasonable as a matter of law and politics, and the Bush people
ought to acknowledge that. What Gore has been doing has not been stretching
the law. It hasn't been stretching out time. It's really reasonable. What
the Gore people ought to acknowledge, and haven't yet, is that the Bush
people's legal position is equally reasonable. We have people who aren't
really pushing hard, in terms of, you know, making frivolous legal arguments
or dumb legal arguments, or self-serving legal arguments. They're--both sides
are acting quite reasonably and in real good faith in terms of their behavior.

The disturbing thing is neither side has acknowledged that point about the
other. In fact, in some of their rhetoric, they've denied it. And the
country will be better off to say, `You know, we have a dispute on Florida
law. We're both proceeding in good faith. And the larger interests of the
country are what's really important. And when this is over, I will pledge and
hope my supporters will pledge full support for the person who's elected.'

GROSS: My guest is Cass Sunstein. He's a professor of law at the University
of Chicago. More after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: Let's get back to the conversation we recorded this morning with Cass
Sunstein, a law professor at the University of Chicago.

As a lawyer and constitutional expert, are you upset to see the election in
the courts? And how do you feel about all the lawyers who are converging on
Florida now?

Prof. SUNSTEIN: I don't think it should be so upsetting that it's in the
courts because what the courts are really doing is to apply the law enacted by
the people. So the courts, I think, are kind of getting a bad wrap in this.
They're not making things up. They're trying the best they can do with the
law. If this was a case where, you know, the law was violated and the
election was no good, then thank goodness we have courts and law to protect
us. I think the sheer numbers of lawyers in Florida is a little disturbing
because, you know, we don't this to be something where the American people
feel that specialists are taking over their democracy. So that's a bit of a
problem. I think lawyers are under obligation to explain that this is--you
know, there's a lot of jargon going on here, but a lot of it is really applied
common sense.

GROSS: Are there any other possible suits that we haven't already addressed
that you see coming up before this is over?

Prof. SUNSTEIN: Well, one thing to watch for is whether there's a federal
civil rights action that really gets off the ground alleging that people were
deprived of the vote in general because of the confusing ballot, or deprived
of the vote on the basis of skin color, because that's high fireworks. That's
really heavy artillery. On what's been reported so far, those lawsuits aren't
likely to succeed, but they're likely to produce a lot of noise if they're
brought.

GROSS: My guest is Cass Sunstein. He is an expert on constitutional law, and
he's a law professor at the University of Chicago.

Do you think that we're in the middle of a constitutional crisis now?

Prof. SUNSTEIN: No. We are in the middle of an extremely complicated and
intricate set of problems, but we're not in a constitutional crisis because we
have peace and stability, and a well-functioning democracy, and two candidates
who are really committed to the process. We are in a constitutional crisis
only in the sense that we have unsettled issues that have a constitutional
feature, so we're in--no one should call this a crisis or an emergency. The
state of the union is good. We have two presidential candidates who have, you
know, a high degree of popular support. They got more votes than Clinton did
the first time around--both of them. So I don't think there's anything really
to worry about, though we do have, you know, some time to go before we get all
this settled. It's a constitutional crisis in a way in the technical sense,
but not in the sense that should concern anybody. It's very different from
the impeachment controversy, for example, where there is a real risk that
something very major and destructive would happen.

GROSS: On the question of whether the American public will recognize the
legitimacy of the next president, if it goes the Republican way, do you think
that Democrats would feel more strongly than Republicans would if it went the
Democratic way because the Republicans tried to--actually succeeded in
impeaching a Democratic president, and this is coming on the heels of that?

Prof. SUNSTEIN: I think it's possible that the impeachment issue is in a way
being replayed in this. And some of the very bad feelings on both sides are
fueling this, where the Democrats think that there was an attempted coup in
the impeachment proceeding. And they think that this effort to close down the
vote prematurely before they've been counted has a couplike feature. Whereas
the Bush people think that--some of them think that the Democrats are
untrustworthy and manipulative and strategic and morally challenged, and that
what we need is to have a process that is committed to the rule of law, which
was the line during the impeachment process, and which is the line now.

Now the impeachment thing I think was quite destructive, and there really was
a villain, and the villain was not Kenneth Starr, I don't think, but it was
the Republican managers who violated the Constitution. But, you know, bygones
should be bygones. And they're good people I think who made a terrible
mistake. Here there really is no villain. Bush and his people are acting
just fine, and so are Gore and his people. I think you're right that some of
the ill feeling from the impeachment and other conflicts is spilling over.
That really, maybe, is the longer-term danger.

I'm not sure the Gore people, because of impeachment, would be more aggrieved
if they lost than the Bush people would be if they lost. Both sides are
talking about how the election is being stolen by the other side. I think we
should end that rhetoric. No one's trying to steal anything. Jeb Bush has
admirably recused himself. There's no reason to distrust the Florida process.
And the rhetoric really should be cooled. I do think that the long-term
concern is that the Bush people, if Gore is the president, will think it's an
illegitimate Clintonian in the worse sense presidency, and the Gore people, if
Bush is elected, will think they didn't let the people vote.

GROSS: Are you worried about any possible permanent damage to institutions
caused as a result of this prolonged election and all the lawsuits, etc.?

Prof. SUNSTEIN: I think the real damage that's possible is to the American
public's faith in the legitimacy of the president for the next four years.
And if that becomes a serious problem, the person to blame will be the losing
candidate, whether it's Bush or Gore. So what I think from the standpoint of
kind of the constitutional system generally, what's worth worrying over is the
risk of what Alexander Hamilton described as tumult and disorder. Hamilton
thought the Electoral College was great; as great as anything in the
Constitution because it would prevent what he hated most, tumult and disorder.
There's a risk of tumult and disorder, and the reason is that neither
candidate is acknowledging the reasonableness and good faith of the other
side.

What Vice President Gore really should do in the next few days is to say, `I,
like my adversary, am committed to this process. We are disagreeing on issues
of Florida law, and maybe some others, but we're not disagreeing on issue of
large principle. We're both committed to the Electoral College. We're
basically tied. And I think he's acting completely honorably notwithstanding
our disagreements.' And instead of saying, `We won. We won. We won. We
won,' which is what George Bush's campaign manager has said, George W. Bush
should say, `You know, we have some unsettled issues here in Florida. And I'm
properly not starting a transition. It's too early for that. I am pressing
my view of the law, but I'm committed to the process, too. And I understand
that Vice President Gore is acting reasonably and in good faith despite our
disagreements. And if I lose, I will pledge my support to him with
enthusiasm.'

GROSS: My guest is Cass Sunstein. He's a professor of law at the University
of Chicago. We'll talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: Let's get back to the conversation we recorded this morning with Cass
Sunstein, a law professor at the University of Chicago.

Now you've said that the Electoral College was originally a place for people
to deliberate about who the next president should be as opposed to the way we
think of it now. You kind of vote the way your state went period.

Prof. SUNSTEIN: Right. That's a neglected topic that tells us a lot about
our constitutional system. There is a debate in the Constitutional Convention
about whether the president should be elected by the Legislature or instead by
the people. And the Legislature was rejected on the ground that that would
make the president too dependant on the Legislature because he would have owed
his job to them. The people were rejected on the ground that, you know, back
then it was hard to get communication transferred quickly so the idea is
people wouldn't know who was good and so they could be manipulated by artful
people. The Electoral College was the compromise that they were really proud
of by which people would vote for electors, and you'd know the electors
because they were your neighbors, and then the electors would all get together
and deliberate with each other, exchange opinions, and they'd be good people,
sensible people, and they'd choose the right president.

What is kind of important for the long run about this is that the framers
wanted to create a certain kind of democracy that is not one that would depend
on like snapshots of popular opinion, but which would have a lot of
deliberation in it. So the Electoral College was supposed to be a
deliberative body just like the Senate's supposed to be a deliberative body
where you wouldn't just do what the people wanted; you listened carefully to
it, but you do what was right. And that's maybe a large lesson for both of
the candidates to keep in mind. Even if the Electoral College is a
deliberative the body--it's kind of an anachronism. People don't know who the
electors were. They know who the candidates were. Even though it's an
anachronism, it has a kind of long lesson about not just reacting to pressures
and snapshots, but also to taking the longer view and exchanging views with
people who disagree with you.

GROSS: When did it change from deliberative to just vote what the voters said
you should vote?

Prof. SUNSTEIN: Pretty quickly. Within about 20 years the electors were
following the voters' will rather than deliberating. I think the key
difference was that political parties weren't around at the time of the
framing, but they came up shortly after the framing. And once political
parties were in place, the electors were kind of party people and then they
just follow the victorious party. In fact, there was a constitutional
challenge to a state law provision which required electors to pledge that they
would support the candidate that the people voted for as a condition for being
electors. So what some states have done is to take steps to ensure that
electors won't deliberate and to do just what the voters said. That was
challenged in the Supreme Court, and a divided court said that the parties
could require the electors just to go along with what the voters said and the
Constitution did not require that they be allowed to deliberate. In upholding
the law, which maybe they shouldn't have done, they said that the practice, as
you say, has shifted over the years towards us following what the people say,
and if the state law wants to insist on maintaining that practice, the state's
allowed to do that. The practice of deliberation broke down pretty early, and
we haven't seen it for many decades.

GROSS: You're a constitutional scholar. Do you think that we should be
looking to other reform or do away with the Electoral College system?

Prof. SUNSTEIN: I'm not sure. I think probably we're not going to because
the Electoral College favors small states. And since you need a super
majority of the states to amend the Constitution, the small states have the
power, and probably would exercise it, to block changes in the Electoral
College. I will say one thing, which is that the Electoral College has been
defended a lot in recent days as a way of ensuring that states get attention
that would otherwise be neglected; states with small populations.

It's not clear that's a good argument because if we have popular vote, then
people--as people get paid attention, depending on where the numbers are, and
it's not clear that people just because they happen to be in, let's say,
Nebraska or Idaho, deserve more attention because they're in a small state
than equal numbers of people who live in California or Illinois or New York.
So it does protect small states, but I think that what you really are
concerned about is people and not where people live. It's not clear that the
disproportionate power of small states can be justified.

GROSS: Cass Sunstein, what lessons would you like us to be learning about the
Constitution as we so closely monitor what's happening in the election?

Prof. SUNSTEIN: I think the large lesson is the amazing stability of the
American electoral process in the face of a real test where both sides are
going within the legal forms, where the space that the Constitution places
between the vote and the inauguration proves to be very wise. The kind of
stability of the system which is committed entirely and all participants are
committed to the rule of law is really quite remarkable under this test. So I
think this is, you know, far from showing that the Constitution needs to be
fixed. This shows that even under the most severe and weird circumstances,
it's basically working.

GROSS: Cass Sunstein, I thank you very much for talking with us.

Prof. SUNSTEIN: Thank you.

GROSS: Cass Sunstein is a law professor at the University of Chicago. Our
interview was recorded this morning.

(Credits)

GROSS: I'm Terry Gross.
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