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Laura Beth NielsenBack to OpinionLaura Beth Nielsen

Democracy at stake

The ice skating rink in New York's Rockefeller Center showed the results of the presidential election, Wednesday, Nov. 7, 2012. Florida was too close to call. Photo: AP Photo/Richard Drew

One week after the presidential election,  it is time to worry about new problems such as the fiscal cliff and the stubborn partisan divide. But before we move on, Americans need to know:  What happened in Florida?  And should Florida be in electoral receivership?

As President Obama said in his election night speech, “Whether you voted for the very first time or waited in line for a very long time –  by the way, we have to fix that,” parts of our electoral system are broken.  Florida is too important to ignore (in spite of  the fact its delayed results did not affect the outcome of the 2012 election.)

Imagine if the outcome had depended on Florida’s 29 Electoral College votes. America would have been put right back to the year 2000 with lawsuits, recounts, and hanging chads.  From November 7 to December 12, 2000, Americans were held hostage by Florida’s election difficulties.  Twelve years later, Florida does it again. Although the consequences may seem less dire this time around, we cannot simply breathe a sigh of relief and move on because the consequences of a drawn-out electoral result are dire. The Federal government should take steps to reduce this possibility now.

When an election cannot be confidently, quickly, and legitimately determined, the business of governing is dramatically undermined in at least two significant ways. First, it reduces the President-Elect’s transition time which is crucial if he or she is not an incumbent. The transition process is spent vetting candidates for important Cabinet positions, meeting with incoming Congressional leaders to begin making plans for the new administration, and for the President-Elect to begin the important tasks of learning critical practices for receiving and digesting confidential security information.

The smooth transition of power is pivotal for our international reputation and for basic continuity on any number of domestic matters.

Perhaps more importantly, the failure to make an electoral determination quickly leaves citizens to question the legitimacy of our most important democratic process – voting. Voter apathy is only one problem an extended process exacerbates. When the Supreme Court ruled in Bush v Gore, Americans rightly bristled at the idea of one branch of government having a profound new role in determining election outcomes.

Confidence in the Supreme Court fell to an all-time low earlier this year  according to a New York Times poll, with only 44 percent of Americans approving of their job. There may have been no other choice in 2000, but avoiding crises that deflate American’s confidence in our Constitutional systems must be prioritized.

Hispanics, who make up some 23 percent of Florida’s population according to the United States Census Bureau, are being touted in all the post-election coverage as one of the most important groups for both parties to court. With 29 Electoral College votes at stake and a closely divided electorate, Florida will certainly be a crucial state in the future. As was the case after the 2000 Florida debacle, the Federal government should invest in research and innovation for our voting processes and equipment to facilitate efficient processes for the states.  But perhaps it is time to take electoral improvement one step further and place FL in electoral receivership.

Floridians are in the best position to demand greater accountability of their voting officials, but because all Americans have a stake in efficient vote-counting procedures, it is time for an intervention. When business are failing and investors lose confidence, companies often are put into receivership – a process whereby a responsible and more neutral entity manages financial decisions for the greater good of the organization balancing employees, stockholders, creditors’ needs.  Similarly, when verified voter complaints are excessive by some measurable amounts or when states cannot manage their own processes delaying results far beyond any of their counterparts, those state officials should be replaced by non-partisan experts.  When partisan electoral processes impede Democracy, we need to de-politicize the procedure of voting and move states to bureaucratic administrations charged with efficiency and accuracy.

To be sure, no one wants inaccurate or premature election outcomes announced by state officials or news organizations.  But with hundreds of lawyers for both parties standing by to file challenges and transform the democratic process of voting into an adversarial legal process, voting accuracy and efficiency is not something to postpone or ignore.

Laura Beth Nielsen is associate professor of Sociology and Director of Legal Studies, Northwestern University, and  research professor for the American Bar Foundation.  She is editor of Law and Social Inquiry and author of License to Harass: Law, Hierarchy and Offensive Public Speech.