My State Senator is still in limbo due to Democratic recounts and court challenges to his election. While we hear a lot of complaints these days about needing to have one president at a time, at least we have one; Frank Padavan’s constituents don’t entirely have a State Senator at all, nor do Norm Coleman’s constituents have a U.S. Senator. And it’s January 13.

You know, I haven’t followed all the twists and turns of the battle over Padavan’s seat, but one thing I have concluded from watching it, and the Al Franken, Christine Gregoire and Al Gore efforts to overturn Election Day results, is that we really do not have any way as a system to deal with these kinds of challenges in a way that gives the supporters of the losing candidate – especially a candidate who was ahead on Election Day – even the slightest bit of confidence that counting decisions made after the election, under the auspices of lawyers and partisans, are at all fair and honest.

This is, as I have been saying for 8 years now, the real point of the Supreme Court’s Bush v. Gore opinion. There are, to be sure, opportunities for ballot fraud and other shenanigans before and during an election, and the system has to provide some remedy for those, at least in provably serious cases. But before 2000 there was an ethos – not always respected, by any means, but to which politicians (most famously Nixon in 1960) at least needed to pay tribute – that the loser of an election did not open a second scorched-earth front designed at refighting every ballot that could conceivably be quibbled over, and that you needed a really serious reason to try to overturn the Election Day Count. That is Al Gore’s lasting legacy to our democracy, and it’s a deeply malignant one.

Machines, of course, can make mistakes, and if we had confidence that the counts produced by heavily lawyered recounting processes were really a more accurate and precise count, it would be worth the cost in money, time, disruption of transitions and hard feelings about democracy to review them. But we have no such confidence; we are, as a society, simply throwing resources at a series of additional counts that give us no reason to think they are any more accurate, and many reasons to think they are much less impartial than a machine count. A machine count is done behind your basic Rawlsian veil of ignorance: both sides may know they stand a chance of getting a raw deal in a close race, but they know it’s basically an even chance. When lawyers and partisan vote-counters get involved, all that goes out the window, and the race to amass a superior quantity of umbrage is on.

Or think about it this way: up until the day of an election, the forces of partisanship have limited resources, less than perfect information about which elections will be closest, and face the reality of having to spread those resources over races for different offices that may be close in different geographic locations. Thus, the sheer effort that has to go into stealing elections will naturally be disbursed. That doesn’t stop election fraud from happening, but it mitigates its influence, making it less practical to use as a routine tool of nationwide partisan combat. But recounts are just the opposite: once the initial counts are in, both sides know exactly which race results can be overturned in the courts, and exactly how many vote changes they need to do it. This is unhealthy in the extreme.

Restoring public confidence in the electoral system requires work on a lot of different fronts, but one major candidate should be a serious effort in state and federal races across the country to raise the showing required to trigger a recount or lawsuit over election results, to preserve the option only for the most serious and severe cases of malfeasance. The current system is unsustainable and ultimately dangerous to democracy.