Winning Recounts: Essential Mathematical and Statistical Insights for Election Lawyers

This Article uses basic mathematics and statistics to construct an optimal general strategy for election lawyers to use in recounts. In doing so, it identifies a likely reason why election lawyers, to their detriment, are prone to buck the conventional wisdom on recount strategy. The conventional wisdom — which tracks the optimal strategy quite well — advises recount challengers to fight to recount most subgroups of votes that are expected to favor the opponent. That advice is counterintuitive to recount neophytes, but it is nevertheless correct. A principal objective of this Article is to explain and defend this counterintuitive requirement so that more candidates and lawyers embrace it. To summarize, recount challengers must consider not just a recount’s expected results but also the level of uncertainty surrounding those expectations; when the uncertainty level is high enough, even likely negative results become worth seeking. Part I of this Article derives some elementary mathematical principles of optimal recount strategy, and compares them to the conventional wisdom of recount experts. Part II applies this optimal strategy to the 2000 presidential recount, looking only at what the parties knew or should have known at the time. It concludes that Al Gore’s strategy was mathematically unsound, in ways that required no hindsight to realize. Part III summarizes the discussion and offers concluding advice for would-be recount challengers and their lawyers.