- The Washington Times - Monday, October 25, 2004

If I were running a presidential campaign, I would rather have a slight lead in the polls than a slight deficit plus a theory about why my opponent’s lead either wasn’t real or didn’t matter. On the basis purely of being on the side of the more likely winner, I would now rather be in the position of the Bush campaign than of the Kerry campaign. But the race is so close that the difference in the probability of either side winning is miniscule.

Put it this way: A guy walks up to the roulette wheel in Las Vegas with his life’s savings in hand, intent on risking it all on one spin: He’ll either be broke or rich beyond his dreams, he figures. He just has to decide whether to bet on red or black. To get the feel of the wheel before the big bet, he decides to put half his money on red and half on black. The ball spins and it comes up — green, one of the two spaces the house reserves for itself. He loses everything without even getting his chance to strike it rich. I think we’re somewhere in that range of probability.

Does this mean that the two political parties have managed to achieve a perfect parity in cultivating voters? That information about people’s preferences and desires as well as their responses to political pitches is now so good that each party, competently run, can lock up exactly half of voters, but that neither party knows how to cross the threshold in pursuit of 1 percent or even 0.1 percent more than half without the risk of loss of an existing 1 percent or 0.1 percent of support? If so, then the close election will likely be with us indefinitely.

I have found it passing strange to hear people complaining in states where the results will not be close that somehow, the election has passed them by, that their votes don’t matter. Well, it’s true that the candidates have not exactly been showering them with attention. But this election is no different from any other except that it is so close. The candidates are focused, quite rightly, on the places where a movement of 1 percent is the difference between victory and defeat overall. States comprised largely of the like-minded ought to appreciate that they prepared the battlefield. I don’t think anyone would especially relish a campaign in which 25 states were in close contention, rather than 10. Well, I would relish it purely as a consumer of political news — but the system would find itself stretched to the breaking point.

The closeness problem is compounded by the possibility of a court fight over the results in close states. Margins of victory come in the shape of a bell curve like most other things. It is not merely possible but actually quite likely that if only a small number of votes shifted in a single state or combination of states, the result would alter the outcome nationally.

We come to the interesting question: What is reasonable in terms of litigation? If John Kerry or President Bush is within a few hundred votes in a state that determines the outcome, it is hard to imagine why either side would concede without a recount or a legal challenge. Al Gore settled that in Florida: Notwithstanding the Democrats’ tendency to blame the Supreme Court for encouraging future legal challenges in Bush vs. Gore, it was Mr. Gore’s decision to withdraw his concession and mount a legal challenge that set the precedent for litigation.

But in a way, a repeat of Florida is too easy. Suppose it’s not just a matter of one state and a few hundred votes but of three states, within a couple hundred or a thousand votes, that, flipped together, change the outcome. Do you go for it? Or is that a bridge too far? And if you do decide to go for it, isn’t your opponent, the apparent winner, likely to take a look at the states in which he narrowly lost with a view toward challenging results in one or more of them in order to shore up his victory against the possibility of reversal in one or more of the states his opponent has challenged? I wouldn’t necessarily count it as very likely, but if I were one of the five justices who brought the 2000 election to a halt in favor of Mr. Bush in 2000, I might just be hoping that this time around, it’s Mr. Bush mounting a dubious challenge to Mr. Kerry, much in the way Mr. Gore went to the Florida courts to get the rules of the election rewritten after the fact. Then, I could tell Mr. Bush to lump it. The ensuing 9-0 decision might just cast some light on what the partisan position was in Bush v. Gore — with the five who brought the Florida Supreme Court to heel, or with the four who were prepared to let stand a standardless recount in the hope that Mr. Gore might after all prevail.

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