The Phantom Menace

Both sides were so burned by the 2000 election aftermath that they're now worried about things not worth worrying about. Stuart Taylor in the National Journal argues that with all the partisan lawyers spoiling for a fight, judges may yet again decide the Presidency. I doubt it.

First, you'd have to have a very close electoral college result. The electoral college tends to amplify the difference in the popular vote. Bush lost the popular vote by .5% and only won in the electoral college by 5 votes. (If Florida had gone to Gore, he'd have only won the electoral college by 20 votes). Compare this to Carter in 1976, who won the popular vote by 2% and the electoral college by 57 votes, or Nixon in 1968 who won the popular vote by a mere .7% and won the electoral college by 101 votes.

Second, you'd need an extremely close state election for a recount to overturn things. If the difference is not within 1000 votes, it's, statistically speaking, highly doubtful any proper recounting will change the result (unless there was a massive technical error or serious corruption). Even a 100-vote difference is unlikely to be overturned.

These two factors combined make a seriously contested election rare.

If the courts learned anything in 2000 (and I doubt they did), it's that while a quick technical recount to check for obvious mistakes is a good thing, anything after that is as likely to introduce error into the system--intentional or otherwise--as fix it. Once the voting is over and everyone knows the results, the last thing we need is some partisan (and they're all partisans) at a bridge table holding up a punch card to the light to decide whether to award his guy another vote.