If allowed to stand, the reasoning behind U.S. District Court Judge Mark A. Goldsmith’s December 7, 2016 decision [PDF] in Stein v. Thomas to halt the Michigan presidential “recount” is flawed, at best. Issued, ironically enough, on the day we commemorate what President Franklin D. Roosevelt described as “a date which will live in infamy”, it is by no means an exaggeration to suggest that Judge Goldsmith’s reasoning could inflict greater harm on the very foundations of our constitutional form of democracy than that inflicted by the Dec. 7, 1941 attack on Pearl Harbor. The halt to the “recount” came just two days after Judge Goldsmith issued a temporary restraining order (“TRO”) directing the MI Canvassing Board to immediately commence the “recount” and one day after a U.S. Sixth Circuit Court of Appeal decision, upholding that TRO. Under that 6th Circuit appeals ruling, Judge Goldsmith was obligated to revisit the issue if “the Michigan courts determine that Plaintiffs’ recount is improper for any reason.” Separately, on Dec. 6, the Michigan state appellate court ruled that, under MI law, only a candidate who has a reasonable chance of winning has a right to initiate a post-election count. But that state court ruling, by three Republican judges, did not justify Judge Goldsmith’s decision to halt a “recount” that had been predicated on Dr. Jill Stein’s rights under the U.S. Constitution.
As he acknowledged in his original decision, the Green Party Presidential candidate did not base her federal claim on state law. To the contrary, in his initial finding, Goldsmith held that the Plaintiffs had shown a likelihood of success on the merits of their claim that the two-business day waiting period mandated by state law “would likely violate their right to vote under the First and Fourteenth Amendments.” Judge Goldsmith, in that first decision, added, “the [federal] right to vote, and to have that vote conducted fairly and counted accurately” [emphasis added] is not merely “fundamental” but serves as “the bedrock of our Nation.”
State law, whether directed at the timing of the recount or to the aggrieved status (standing) of the candidate seeking the count, should not be allowed to infringe upon a fundamental right that every citizen has to a verifiably accurate count of their votes.
The truly damaging aspect of the decision to dissolve the TRO lies not in the question of standing but in Judge Goldsmith’s upside-down reasoning as to who should bare the burden of establishing the integrity of the vote. That reasoning is directly at odds with the rulings made in two landmark cases in Germany and Austria, to the effect that the need for election integrity and transparency are paramount in any nation that values democracy…