Slow and tortuous though it may seem, American democracy still works

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The Independent Online

As the American election zigzags towards its conclusion, each development in Florida favouring first one candidate then the other, it is worth remembering that the outcome is not "being decided by the courts", as has been alleged repeatedly by gleeful critics of US democracy. The outcome will be decided by those millions of manila-coloured hole-punched cards still being counted in Florida.

As the American election zigzags towards its conclusion, each development in Florida favouring first one candidate then the other, it is worth remembering that the outcome is not "being decided by the courts", as has been alleged repeatedly by gleeful critics of US democracy. The outcome will be decided by those millions of manila-coloured hole-punched cards still being counted in Florida.

The role of the courts is to decide which counts are in conformity with the law. Yesterday's judgment was effectively in favour of counting by machine rather than by hand - which, if upheld by the appeal courts, will hand the White House to George W Bush. As is evident from the repeated reversal of fortunes over the past 11 days, this is by no means certain. The courts are the right place to resolve the matter. The only other options are that one candidate should concede defeat before it is certain that he has been defeated, which is unsatisfactory, or that the issue should be decided by rioting in the streets, which is unacceptable.

The critics of the American way of resolving disputed elections complain that local electoral officials and judges in the US are political creatures. The fact that Katherine Harris, Secretary of State of Florida, is a red-blooded Republican, while most of the Florida judiciary are card-carrying Democrats, is blamed for the partisan battle to-and-fro in the courts.

It is true that Ms Harris is the equivalent of a chief returning officer in Britain, a post which would be held here by a non-political bureaucrat. Indeed, a British returning officer is forbidden to have any party-political interest. It is also true that American judges are elected or appointed, often on a party-political ticket, or at least in an overtly political way.

Who is to say, however, that one system is definitely superior to the other? The American arrangement has the great virtue of transparency, in that everyone knows where all the players stand. The British tradition of a disinterested public service is certainly a valuable one, too. But our way of appointing judges, by secret consultation, pretending that prejudices and politics do not exist, and under the ultimate supervision of the Lord Chancellor, a party-political Cabinet minister, is hardly to be preferred.

In any case, the integrity of the Florida count is ultimately underwritten by the one court which most Americans, and most outside observers, respect, namely the federal Supreme Court. The cases being argued in Florida may never be heard in Washington, but the Supreme Court stands behind them in the sense that appeals against any decision can always go to a higher court. Even if the Supreme Court were to rule that it had no jurisdiction, that would in effect confirm any ruling by the Florida courts. It would be better if the US president were directly elected by a simple majority of the popular vote, which would make the election a federal matter to be decided in federal courts. But that is a question for next time.

This election will, meanwhile, be decided one way or another, and fairly soon. The scope for litigation is limited by the weight of public opinion. Once the appeals procedure has been exhausted on this central point - which votes count? - the candidates, the American people and the world will accept the outcome. Democracy and the rule of law will have triumphed.

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