The talk about Yanukovych possibly pulling out and Yuschenko having to come up with 50% plus one vote really begs the question. The problem is that talking about the possibility of having to come up with 50% of the vote is a legal argument. In nothing that has happened to date is the answer to be found in the law library. It has been important that there be a color of legal authority to make sure that the institutions of government are preserved, so the law is not a non-issue, but very little of what has happened has been legal. And this is arguably even true of the Supreme Court decision, as good as that was for the people and for the court. (As a matter of fact, Kuchma has not signed it something he is supposed to do for it to have any effect. But things are moving along as if he had. Legal?) If it were reversed and the Yanukovych people were out on the streets saying the vote had been fixed and that their man had been robbed, there is not a one of us who has been following this thing who would not call for them to be prosecuted to the extent they could be under the law. Why? Because they would have broken laws and, the greater point, would be trying to throttle democratic reform of the kind that is needed here terribly.
Technically speaking, those who have taken to the streets and blockaded government buildings have broken the law. The reason why there has been the support for it and ought to be is that they have done it to promote something of a much higher value, real democracy and the rule of law. It is only in that sense that we can say that their actions are justified. Without this, it would have been right to prosecute them. It would have been the legal thing to do.
Our own experience is interesting in this regard. The Constitutional Convention started out to be a meeting to revise the Articles of Confederation. It ended up a convention to chuck the Articles in favor of the Constitution they came up with. Truth be told, it was illegal; no one had the right to commit their states to the Constitution at all, no legal right. And when they finished, they hedged their bets and required only a two thirds majority of the states to carry it. The states who voted against it became a part of it anyway. Not very sporting was it? In its essence it was a coup. But the reason why we celebrate it and should celebrate it is that a better system was devised and a better government was the result.
The same can be true here. The justification for all of this is that democracy will finally win out here in the Ukraine and the rule of corrupt masters who grind the faces of the people to maintain their empires will be at an end. If a better system results, that is all the moral justification for it it will need.
But this is not strictly speaking legal.
In any event, does anyone really think that if Yanukovych pulls out and Yuschenko has to come up with 50% and he only comes up with 49% or something like that that the people in the streets will lament, wring their hands and wonder what to do next? Or worse, say their man lost, the future is bleak, pull up stakes and go home? Not at all. They will call it a victory and use the extra-legal methods they have been using from the beginning to get the government to vacate so their man can move in and start governing. It might be that people will be disappointed, depressed for a moment or two and see it as one more hurdle that has been thrown up in their way. But I cannot see that they will take the result of that election and consider it to be anything less than some more color of authority to do what they have been doing, forcing the government to capitulate so that democracy can take over. And they shouldn’t.