Skip to content

Legal challenges to the election recounts and what comes next

Las Vegas, USA - October 8, 2016: An editorial stock photo of the 2016 Presidential General Election Ballot. Focused on Hillary Clinton. Photographed using the Canon EOS 5DSR and Canon 100mm f2.8 IS L lens.

Jill Stein, the Green Party presidential candidate, raised $7 million to fund election recounts in Michigan, Wisconsin, and Pennsylvania, three battleground states where Donald Trump narrowly defeated Hillary Clinton en route to capturing the presidency. Stein argues that the costly undertaking will “help restore confidence in our elections and trust in our democracy,” but she freely acknowledges that her recount effort is unlikely to overturn the election results.

As of Wednesday evening, Wisconsin’s presidential recount was 70 percent done, but legal challenges had halted the proceedings in both Michigan and Pennsylvania. A federal judge in Michigan who ordered the state to start recounting votes dropped his decision on Wednesday, effectively ending the recount there. And Stein’s recount request in Pennsylvania is on hold until a federal court hearing on Friday.

We asked William Crotty, pro­fessor emer­itus of polit­ical sci­ence at North­eastern and an expert on Amer­ican elec­tions, to explain what the recounts involve, why Trump supporters are working to block these efforts, and how the recount results might influence future voting policies.

Stein acknowledged that her “goal is not to change the result of the election.” But she is pushing for a recount in the three states that effectively put Trump in the White House. Why?

The consequences of the 2016 presidential election are just beginning to come into focus and they are enormous. Those seeking a recount want assurance that the vote was accurate. The reality is that the totals for both candidates are likely to change. People charged with the vote count make mistakes and, in a few isolated cases, quit the counting before it was completed. Still, the recount is unlikely to change the outcome of the election.

The three states in question were chosen since they were critical in determining the election’s outcome and Trump’s margin of victory in each was minuscule—less than 1 percent. The numbers: Trump won Wisconsin by 27,257 votes; Michigan by 10,704; and Pennsylvania, where a recount is presently tied up in the courts, by 49,543. Should the vote results after a recount favor Clinton, she would gain 46 electoral votes, changing Trump’s total from 306 to 260 and hers from 232 to 278. This would be enough to meet and exceed the 270 needed for victory.

Clinton was presented with evidence from electoral experts that her vote totals in counties using electronic voting machines was 7 percent lower than those using hand-counted paper ballots and optical scan voting systems, both considered more precise and reliable and less open to miscounts or hacking than the electronic machines.

This brings up another issue that came into play. The Russians were accused of hacking email accounts during the campaign to benefit Trump. There was a concern, although no evidence existed to indicate this had happened, that the voting machines might have been hacked.

The Clinton camp initially decided not to seek a recount. At that point, Stein decided she would. Her response to Trump’s charges that she engaged in the recount to raise money for her party was that the funds raised would be placed in a separate account to meet state financial demands and the costs of litigation. In a rally in front of Trump Tower she presented her rationalization: “We are here to assure Donald Trump that there is nothing to be afraid of if you believe in democracy. If you believe in the credibility of the victory, put down your arms and your bureaucratic obstruction.”

Trump seems confident that the election results will stand, tweeting on Sunday that “nothing will change.” But his allies have tried to freeze Stein’s recount efforts, filing lawsuits in Michigan, Wisconsin, and Pennsylvania. How do you reconcile Trump’s tweets with the actions of his lawyers?

Trump, in public statements and his Twitter messages, has attacked the recount. Joined by the state Republican parties, he has also entered into legal actions in the three states to stop the recounts. He has personally attacked Stein and Clinton and again charged that the election is rigged and that millions of people voted who should not have, especially in California, Clinton’s strongest state. All of this is familiar from the campaign and to be expected.

What is the recount process like in these three states?

State and localities do not want recounts. They are expensive and time-consuming and normally amount to little. There is an additional problem that in a few weeks the states are required to submit their final results to the Electoral College members meeting in Washington, D.C.

Each state has different requirements that are difficult to meet and each specifies the conditions that would allow for a recount. Although these also differ, they usually include a provision that there is reason to believe the results of the initial vote are wrong. They also provide a requirement that the margin of votes separating the contenders fall into a specified window (i.e., are reasonably close to each other). State courts are normally unsympathetic to recount requests—just see the situation in Pennsylvania, where the case has been moved to a federal court. The states also require a substantial financial bond for a recount. Those seeking the recount, should they lose, pay all or a substantial part of the final costs, which are estimated at $4 million in Wisconsin. To meet these financial requirements, Stein has raised more than $7 million, with an ultimate goal of $9.5 million.

The Clinton campaign chose not to exercise its own right to call for a recount after failing to find compelling evidence of voter fraud or result manipulation. But now that a recount has been initiated, her camp has decided to participate “in order to ensure the process proceeds in a manner that is fair to all sides.” Whatever the outcome, what are the chances that the recount triggers voting reforms?

After the fiasco in Florida in 2000 and the Supreme Court’s selection of Bush, Congress established a commission to test, recommend, and fund state and local adoption of the most accurate and reliable vote count procedures. If reform, such as it was, did not take root under the 2000 election conditions, it will not now.