The Non-Lawyer Response to Mark Levine, Esq

THE NON-LAWYER RESPONSE TO MARK LEVINE, ESQ.
by Mark Vakkur, MD

Q: So you're NOT an attorney, right?
A: Right.
Q: But you can read, right?
A: Usually.
Q: And you know a thing or two about numbers, right?
A: Correct.
Q: So Gore won the popular vote right?
A: Not exactly. 49,189,630 Americans voted for Bush. 49,390,808 voted for Gore, a difference of 201,178 (0.198% of the total popular vote). This is not statistically significant. If the entire vote were tallied 100 times, Bush might win 50 times and Gore might win 50 times. At what point do you stop counting? Which tally is final? It's a wash. The outcome would be extremely sensitive to initial conditions as well as to how the count is conducted, not to mention plain old human error.
Q: But how can it not be statistically significant? One number is bigger than the other!
A: Wrong. Voting is an imprecise activity. There is a margin of error, not just in how votes are tabulated and counted, but how those votes are reported. Errors occur at every step of the way. This error is larger than 0.198%. Therefore, one can't really say that either candidate won the popular vote.
Q: So why don't they just split the electoral college vote then?
A: That would require an overthrow of our constitutionally elected government, since the Constitution very clearly spells out that it is the winner of the electoral college, not the popular vote, who becomes President. Are you advocating a coup?
Q: No - I'm proposing we amend the Constitution. It's high time we did!
A: We can, but that still would not change the 2000 election results. It would only affect presidential contests going forward.
Q: But those old dead white males didn't know what they were doing. We're smarter now. We have MTV, Who Wants to Be a Millionaire?, and Survivor. We have sound bytes and the Internet. They just had the Enlightenment, Rousseau, and Voltaire. They were fluent in several languages, sure, but did they know Java? Did they have chat rooms? I think not. Yeah, they wrote and read in Latin and had classical educations, but what good are those when you're dealing with Generation Y?
A: I imagine there's a question in there somewhere.
Q: There is. Isn't it time to overthrow the electoral college?
A: Perhaps. But that would not affect the election results of the 2000 race, of course. Neither candidate complained about the electoral college prior to the outcome of the race. Each knew the rules of the game going in and according to those rules, Bush won. It was a cliffhanger, but he won. Gore contested, as was his right, and after a protracted legal battle, Bush's victory was not overturned by the courts.
Q: Yeah, but were robbed!
A: I imagine that is how many occupants of small towns and rural areas across the country would feel if the electoral college were abolished. After all, two-thirds of all counties and states voted for Bush. He carried 30 states. That's 50% more than Gore.
Q: Who cares what some rancher in Wyoming thinks? If they don't live in New York or L.A. or Washington, what business do they have deciding an election?
A: And it's because of attitudes like that that the electoral college was founded in the first place.
Q: But we were robbed!
A: Who do you mean "we"? Half of the country voted for Gore, half for Bush. It seems either way, the outcome would have disappointed half and pleased half. And there are plenty of people who probably didn't care all that much. It's not as though either one is proposing anything nutty like sending troops into Vietnam or anything.
Q: I read in Mark Levine's email that Gore's victory of SEVERAL HUNDRED THOUSAND VOTES over Bush was THREE TIMES that of Kennedy over Nixon in 1960:
> Email this to everyone you know, and write or call your senator,
> reminding him that Gore beat Bush by several hundred thousand votes (three times Kennedy's margin over Nixon) and that you believe …
A: I hope Mr. Levine is a better at law than he is at math. Kennedy received 0.174% more of the total popular vote than did Nixon. Gore received 0.198% more of the total popular votes than Bush. This is a difference of .02%, but since no one claims the election process has anywhere close to this accuracy, it is mathematically irresponsible to even compute such differences. At any rate, .198% is not "THREE TIMES" .174%.

Q: But that's percentages! I was always a little fuzzy about those things. What about the total vote?
A: Well, to start with, more people voted in the 2000 election, so it's not surprising that the absolute difference was greater in the latest election. 101,739,818 Americans voted in the latest election; 48.9% more than the 68,334,888 who voted in 1960. The difference of 201,178 votes between Bush and Gore is certainly not "THREE TIMES" as great as the 118,574 difference between Kennedy and Nixon. In fact, for Gore to have received the same proportion of total votes cast as did Kennedy in 1960 (50.09%), he would have to get another 1,567,370 votes! All the recounts in the world would not give him that kind of net gain over Bush.

Q: But Gore still received more votes. He won the popular vote, right?
A: Only if the margin of error was less than 0.2%, which we know it's not. The Democrats were arguing quite forcefully that the margin of error was much higher.
Q: But what about the feeling among African Americans that they were disenfranchised? Jesse Jackson says they were!
A: Specific incidents should be investigated and corrected, but no one argued that fewer blacks participated in this election than in any election in the Jim Crow south.
It should be remembered that the 1960 election de facto (and in many cases de jure) excluded many African American voters who voted for Gore by a factor of 9:1 in the latest election. Had African Americans – especially in the South - not been disenfranchised in the Kennedy election, no doubt Kennedy would have won by a much wider margin. Looked at another way, Gore, an incumbent running on a track record of a decade of strong economic growth, should have won by a landslide. The fact that he didn't and that Bush did as well as he did means that this was a very real personal failure for Gore. There must have been something about him that American people did not like.
Q: But weren't African Americans robbed? I mean, there were roadblocks!
A: Who's "they"? And they were stopping only Democratic voters?
Q: I – uh - don't know but – one shouldn't disenfranchise the American voter.
A: No, one shouldn't. Which is why the most disenfranchised voters should be given back the right to vote.
Q: You mean, the –
A: Military. In Florida alone, 3,733 military absentee ballots were cast. 1,527 were rejected or 40.9%. This is a higher rejection rate than for any other group, ethnic or otherwise. Since this group tends to favor Republicans, it is conceivable that many of these rejected votes would have gone to Bush, making the outcome in Florida far from a slam dunk for Gore if a true recount had gone forward. But of course Gore never advocated that these votes be counted also.
Q: But it was so divisive of the Bush camp to call attention to that issue.
A: And Jesse Jackson fueling racial tension and suspicions wasn't? It is important to remember that African American and Hispanics disproportionately serve in the Armed Forces, meaning that many of those whose military ballots weren't counted were also disenfranchised minorities.
Q: OK, so every vote should count! Why couldn't they just sit down and recount all the ballots?
A: Good question. Why then did neither party – Bush nor Gore – request this? Gore requested selected recounts in a few highly Democratic counties where he felt his probability was greatest of getting the outcome he desired. Smart politics, but a far cry from "count every vote." Gore's attorneys never argued in any case for a statewide election. Perhaps they knew that it would have been a coin toss.
Q: But when the Florida Supreme Court ruled that a statewide recount begin, they were overruled by the Bush people.
A: They were overruled by the Supreme Court.
Q: It's wrong for the courts to decide an election.
A: Then why did Gore take his case to the courts?
Q: But the Supreme Court is politicized!
A: And the all-Democratic Florida Supreme Court isn't?
Q: Look. Bottom line: why couldn't they simply have counted the votes?
A: All the votes?
Q: Yes.
A: Well, they already had – twice in many cases. The votes that would have been counted were those rejected by a machine in most cases because the voter failed to follow instructions. The unspoken assumption among Democrats must have been that Democratic voters were more likely to make errors casting their votes than were Republican voters. The recounting process itself was highly subjective and error-prone and there would have been no recourse or appeal. No one, interestingly enough, was arguing for a counting of the rejected military absentee ballots. So even a recount of the machine "undervotes" would not have counted all the votes.
Q: But wasn't it wrong of the Supreme Court to decide the election?
A: The Supreme Court didn't decide the election. Bush won the election. Gore challenged the election results. Gore lost the subsequent recount. The Supreme Court shut down his attempt to get a third shot at the free throw line.
Q: But Mr. Levine says it was wrong. He writes that "America is not a democracy. In America in 2000, the guy with the most US Supreme Court votes wins."
A: Only in a very tightly contested election. If Gore had carried the popular vote by a sizable margin as he should have based on the known predictors of presidential success (money spent campaigning, strength of the economy favoring the incumbent, running as an incumbent in the first place (sort of), running against a (nationally) relatively unknown candidate), the election never would have ended up in the courts. In fact, had Gore simply conceded after losing the first recount he demanded, it never would have been decided by the Supreme Court.
Q: But isn't it wrong for courts to decide elections?
A: Hmmm…. So you must have been pretty furious when the Florida Supreme Court overrode the electoral process not once but twice?
Q: Why, no. That's different – uh – they're Democrats.
A: I see. So truth is a function of political party?
Q: No, it's just that – um – well, one day we will have access to those votes in Florida and count them. Then we'll know who really won.
A: Perhaps. Or perhaps you will simply get another razor-thin margin in very tight race. The truth is that even the most strident partisan has to admit this race was close. It could have gone either way.
Q: But "several hundred thousand" isn't a small number!
A: In a country of 275 million, it is. 0.2% is a small number. The hard, cold reality is that there is some unfairness to this system and a certain amount of error. Usually it doesn't matter much because the election isn't usually this close. This time it was and a Republican won. Last time it was this close a Democrat won. You win some, you lose some.
Q: But how can you be so cavalier? We're talking about an election for President of the world's only remaining superpower!
A: Well, even if you recounted and one candidate won by a small margin, what would it prove? When would the process end? Should there be a national recount? Democrats would argue they were robbed if Gore "won" the recount and Republicans would challenge the highly subjective methodology of handcounting, yet again, ballots that were not marked properly enough to be read by a machine. If Bush won again, then Democrats would keep crying foul until one of the counts went their way. You could keep counting and counting until you got the result you wanted but statistically it would prove nothing because unless Gore was able to pull out a few hundred thousand more votes, his victory would not be within the margin of error. And who's to say that Bush wouldn't win (yet again) anway?
Q: He wouldn't! And he didn't! He won the popular vote!
A: By the thinnest of margins in an election in which the American people were clearly divided. Put another way, about 50% of the electorate chose each guy. It's not as though Gore had an overwhelming, unquestionable, statistically significant majority and was assassinated or something. He lost a close, tight race.
Q: But George Bush is an idiot! He's terrible for the country!
A: At least 49 million Americans disagree with you. That's why we have elections. It's not a perfect system, but it worked in this case. There was a peaceful transfer of power. There was no coup, no assassination, no widespread fraud. There may have been isolated cases of questionable conduct on each side (discarded military ballots, for example), but it is unlikely the election results were materially affected by them.
Q: Well, I feel wronged and nothing you say can change that.
A: I will have to agree with you there. You feel wronged. It's not a function of logic, but a visceral feeling of injustice, of not getting your way. You can always find evidence to support that point of view.
Q: Don't psychoanalyze me! I hate Bush! I hate all Republicans! I hate all conservatives! I hate Reagan and Thatcher and –
A: Then you should be thankful that we have a separation of powers and that the President can only do so much damage without being his power being checked by the House, the Senate, or –
Q: Don't say it.
A: - the courts.
Email this to everyone you know, and write or call your senator, reminding him OR HER that Gore fought hard but lost to Bush and it's time for the country to MOVE ON and GET OVER IT. Our system works. It's messy, it could be improved, and it's sometimes loud and noisy but to paraphrase Winston Churchill it's better than all the alternatives.
Appendix:
Presidential Election results, 1960 v. 2000:
Difference: % of popular vote: