Talk:Bush v. Gore

The per curiam ruling

This part of this article:

"The per curiam opinion also identified an inconsistency with the fact that the Florida statewide recount of rejected ballots was limited to undervotes. The opinion implied that a constitutionally valid recount would include not only Florida's undervotes, but also its overvotes. The per curiam expressed concern that the limited scope of Florida’s recount would mean that, unlike some undervotes found to be reclaimable, valid votes among the overvotes would not be reclaimed.[a] Furthermore, if a machine incorrectly reads an overvote as a valid vote for one of two marked candidates instead of rejecting it, Florida would wrongly count what should be an invalid vote.[b]"

–is a bit misleading since only counting the undervotes and overvotes won't result in identifying any ballots that were mistakenly counted by the voting machines (which SCOTUS has identified as a problem in the last sentence above). To identify any overvotes that are mistakenly counted by the voting machines, the ballots that are classified as legal votes also need to be manually recounted (on top of recounting the undervotes and overvotes). Law professor Nelson Lund said as much when he analyzed the Bush v. Gore ruling:

https://www.law.gmu.edu/assets/files/publications/working_papers/1061VeryStreamlinedIntroduction.pdf

"The initial recounts conducted in the Gore-selected counties covered all ballots, but the statewide recount ordered by the Florida court was limited to undervote ballots. Undervote ballots are analytically indistinguishable from overvote ballots. In both cases, the machine registers no vote, and in both cases a human observer might decide that the machine had erred. What’s more, some ballots that a human observer would interpret as an overvote (and thus treat as no vote) could have registered as a valid vote in the machine count. The Florida court’s restriction of the statewide recount to undervote ballots thus arbitrarily treated voters in the counties initially selected by Gore differently than voters in other counties."

Also this part of Lund's article:

"It should hardly be surprising that Gore asked for a recount that was biased in his favor. The Florida court sought to reduce this completely obvious bias by ordering a statewide manual recount. But why limit the statewide recount to undervote ballots? The only apparent reason was that these ballots resembled the 9,000 undervote ballots that Gore wanted to have recounted in Miami-Dade. But why exclude overvote ballots, either in Miami-Dade or elsewhere? Indeed, why exclude the ballots that machines had registered as valid votes, some of which may have proved to be invalid when subjected to human scrutiny? The partial statewide recount only reduced the one-sided geographic discrimination in the initial manual recount, without curing it."

While SCOTUS itself was arguably a bit unclear on this, the only possible way that invalid ballots among the valid votes could be identified would be for all of the valid votes to get manually recounted. I really don't see how exactly one can interpret this sentence any differently. Just like Florida's voting machines could have improperly rejected ballots, they could have also mistakenly accepted ballots, and SCOTUS identified the lack of a correction for both of these things as problems with Florida's manual recount. 68.4.99.100 (talk) 20:44, 23 August 2022 (UTC)

Here's the relevant sentence from the per curiam opinion:

"In addition, the recounts in these three counties were not limited to so-called undervotes but extended to all of the ballots. The distinction has real consequences. A manual recount of all ballots identifies not only those ballots which show no vote but also those which contain more than one, the so-called overvotes. Neither category will be counted by the machine. This is not a trivial concern. At oral argument, respondents estimated there are as many as 110,000 overvotes statewide. As a result, the citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual recount; on the other hand, the citizen who marks two candidates in a way discernable by the machine will not have the same opportunity to have his vote count, even if a manual examination of the ballot would reveal the requisite indicia of intent. Furthermore, the citizen who marks two candidates, only one of which is discernable by the machine, will have his vote counted even though it should have been read as an invalid ballot. The State Supreme Court’s inclusion of vote counts based on these variant standards exemplifies concerns with the remedial processes that were under way." 68.4.99.100 (talk) 20:49, 23 August 2022 (UTC)