Two weeks ago I published a Medium post outlining how the Clinton campaign would respond to Jill Stein’s plan to seek recounts in three states — Wisconsin, Michigan and Pennsylvania. I explained that we had not planned on seeking recounts because we had not uncovered actionable evidence of hacking or tampering with voting systems, equipment or results. However, I made clear that we would participate in any recount initiated by others to ensure the process proceeded in a manner that was fair to all sides. Though many have mischaracterized our efforts, I acknowledged in my Medium post (and subsequently in a Washington Post Q&A) that the results were not likely to change materially and that “the number of votes separating Donald Trump and Hillary Clinton in the closest of these states — Michigan — well exceeds the largest margin ever overcome in a recount.” With the recounts no longer in process, and the electoral college safe harbor date now upon us, I wanted to write to update our supporters and detractors on how the process worked (or did not work) and what we learned.
In Wisconsin, the recount proceeded relatively smoothly thanks to the cooperation of the state and local officials. We urged the state, and the courts, to ensure that the recount was conducted by hand statewide. That request was rejected. Nevertheless, the state has a process to conduct a post-election ballot audit, and most jurisdictions in the state chose to recount by hand. Those that did not recount by hand recounted via machine. An effort by two pro-Trump super PACs to halt the recount was resisted by the Republican Attorney General and rejected by a federal court. As predicted, the recounted results showed little change versus the initial results.
In contrast, Michigan halted its hand recount after the Republican Attorney General sued the state’s own election board for ordering the recount at all. The narrow legal issue was whether Dr. Stein was “aggrieved” by the election results. The larger, more troubling issue is whether states ought to be picking and choosing which candidates they think are really “aggrieved” and which are not. If North Carolina law says that only candidates within 10,000 votes may seek a recount, that is a clear standard. So, too, is a state law, like that in Wisconsin, that does not set a vote threshold to seek a recount. What isn’t fair, or likely constitutional, is a standardless approach where state officials or courts use their own judgment to decide if they think it’s close enough. Michigan may believe that Dr. Stein couldn’t possibly win and she isn’t “aggrieved,” but the Michigan law doesn’t set a threshold and nobody should want states exercising those judgments after the vote has taken place.
Finally, in Pennsylvania, the recount effort never got off the ground. Due to Pennsylvania’s arcane laws, the use of touch screen voting machines, and organizing challenges, the effort to obtain a statewide recount failed. Similarly, the efforts to obtain a forensic examination of voting systems suffered the same fate. In the end, the margin in Pennsylvania was the largest of the three states, but the process for recounting and confirming those results was the most difficult.