The overvote footnote on Bush v. Gore

The Wall Street Journal's John Fund makes a claim about the 2000 election that is only partially true:

Democratic partisans still argue that the 2000 presidential contest was decided by a single vote in the U.S. Supreme Court, even though media recounts of Florida ballots showed that the outcome would not have been changed if Bush v. Gore had gone the other way.

While it's true that the outcome would probably not have changed if all the undervotes had been counted, the judge supervising the recount said he might have counted the overvotes as well, a decision that would have tipped the outcome to Gore.

Comments

[Ben Hartman]

Please forgive my ignorance, what is the difference between overvotes and undervotes?

[Rob]

We really are building speculation upon speculation here, but even if the Republicans had argued for counting the overvotes and even if the judge had accepted their argument over objections from the Democrats, that would still have left the small problem of conducting a full statewide recount of overvotes between the afternoon of December 9, 2000 and the December 12 deadline for selection of electors by the Florida legislature. In that scenario, the likely outcome would have been that the legislature would select electors on its own, without regard to the Florida popular vote, and given that the legislature was majority Republican, the Florida electors would have gone to Bush.

It's also worth noting that the common gloss, repeated by John Fund, that the election was decided by a single vote on the Supreme Court ignores the opinions in Bush v. Gore. Seven justices found that the Florida Supreme Court's recount plan violated the Equal Protection Clause of the U.S. Constitution. Five of those justices thought the correct remedy should be to stop the recount immediately, which is what happened. Two of the justices (Breyer and Souter) thought the remedy should be to remand the case to the Florida Supreme Court for it to figure out how to comply with the U.S. Supreme Court's ruling--despite the looming deadline for the Florida legislature to act. So although the decision as to remedy was 5-4, the fundamental holding--that the recount as it was being conducted was unconstitutional--was 7-2. You don't have to accept my reading of Bush v. Gore; you can go to that well-known legal authority, Wikipedia, and read all about it.

[Rob]

BTW, an undervote is a ballot not counted because it was regarded as not indicating a vote for any of the candidates. An overvote is a ballot not counted because it was regarded as indicating a vote for more than one candidate.