Law, Probability and Risk (2002) 1, 83–96 Breaking deadlock, shattering ideals RICHARD LEMPERT† Eric Stein Distinguished University Professor of Law and Sociology, University of Michigan Law School, Hitchins Hall, Ann Arbor, MI, 48109-1215, USA [Received on 14 December 2001; revision received on 3 February 2002; accepted on 4 February 2002] Judge Richard Posner’s book on the 2000 presidential election and the case it spawned, Bush v. Gore, was published on September 5, 2001. Six days later it was, if not irrelevant, substantially less important, for the practical implication of Posner’s argument is to establish the legitimacy of George Bush’s victory in Florida and his consequent election as President of the United States. It is unlikely that this book, or any book for that matter, could have accomplished this, but the events of September 11 and its aftermath made the book’s practical implications of no moment. George Bush’s actions since September 11 have, for most Americans, legitimized his claim to his office in a way that no academic writing, however persuasive, could do. As the events of September 11 fade (assuming no new terrorist attacks), the usual partisan wrangling and attacks will, no doubt, return to the Washington scene, but the attacks will not be the same. Whatever the complaints that Democrats, civil libertarians, minorities, environmentalists and other administration critics make, the trope of illegitimacy no longer has its pre-September 11 resonance, and arguments about whether the Supreme Court usurped or saved the democratic process seem beside the point. Judge Posner’s book focuses on the legal issues raised by the 2000 election and the debate surrounding them, but in addition, he speculates on the ‘true’ outcome of the election. Here too events have overtaken analysis, for two consortiums of newspapers commissioned surveys of the disputed Florida ballots and have reported what they found. These surveys, one of which appeared in time for Posner to reference it, substantiate several of Posner’s observations, the most important of which is that the injunction to count all ballots is not a formula for resolving doubt about the election. Whether Bush or Gore emerges with the most votes depends on the standard used to determine voter intent. Posner also points out, although it is again not news, that the Gore campaign made a serious mistake in confining its recount request to undervotes. A substantial proportion of the uncounted but recoverable votes were not undervotes but overvotes, such as ballots in which voters both marked their ballot as directed and wrote in that candidate’s name. The intent of overvoters was often clear, and Gore could have gained a crucial edge had overvotes been counted. Finally, Judge Posner acknowledges that if the intent of those voting determined the outcome rather than the records they left of their intent, Gore would have prevailed. Voters misled by Palm Beach’s now infamous butterfly ballot would have provided the margin. But Posner dismisses the butterfly ballot as having no implications for the validity of the Florida results. Election winners are for him those who receive the majority of properly † E-mail: rlempert@umich.edu c  Oxford University Press