Who’s afraid of a big bad recount?

Funny how everyone was concerned that Trump might not accept the results of the election, when all along it was Green Party candidate Jill Stein we had to worry about.

As you’ll know, Dr. Stein has been raising money to request recounts in the three mid-western states that propelled Trump to victory: Wisconsin, Michigan and Pennsylvania.  The deadline for submitting a recount request in Wisconsin was 5pm last Friday, and Stein managed to lodger her petition there with 90 minutes to spare.  So there will definitely be a recount in Wisconsin.  Deadlines for challenging the results in Pennsylvania and Michigan are today and Wednesday, respectively.

The 2000 Florida recount was a formative experience for me and for many others of my generation.  Any mention of a recount brings up the spectre of hanging chads and divided Supreme Court decisions.  Despite the fact that the recount didn’t change the outcome of the election (and three independent recounts by media organisations after the election confirmed that Bush did – very narrowly – win Florida), watching Bush’s margin of victory shrink from 1,500 votes to just under 600 instilled in many people a belief that if we just count the votes enough times the result might magically change.

And indeed the result might change if the margin is only a few hundred votes in a statewide election (due to incorrect marking, challenges and miscounting, both in the first count and the second).  But the margins we’re talking about here are comparatively huge: 27,000 in Wisconsin, over 10,000 in Michigan and nearly 70,000 in Pennsylvania. In the absence of clear evidence of fraud, it is impossible to see how the result in any of the states could change (remember, even in the hotly contested Florida recount, conducted while votes were still coming in, Gore could not overcome a 1,500 vote deficit).

But what about hacking?  Well, Pennsylvania uses old mechanical voting machines that are impossible to rig unless you physically modify each machine.  This can be done (and probably has been), but it’s a very inefficient way to steal an election and requires a lot of logistical coordination – i.e. a ground game, something Trump famously didn’t have.  Also, you would expect the machines in the cities to be the ones rigged, since urban precincts have more voters, except that the Democrat vote in Philadelphia was up over four years ago.  So, no evidence of hacking in Pennsylvania.

In Wisconsin and Michigan they use electronic voting machines.  The original impetus for a recount came from an article published by a Michigan computer science professor which noted that Trump performed 7% better in counties where electronic voting machines were used.  However, as Nate Silver at FiveThirtyEight (hardly a bastion of conservatism) has shown, this difference can be explained entirely by the different demographics in counties with and without electronic voting machines.  Voting machine types are not distributed randomly – rural counties, which voted for Trump, are far more likely to have electronic machines than urban counties, which voted for Clinton.

These machines are not connected to the internet, which again makes them virtually impossible to hack remotely.  Although in theory a virus could have been included on the USB sticks used to update each machine’s software ahead of the election, this would again require a certain degree of logistical coordination, and there is no evidence that any of the voting machines have been compromised.  And indeed, both the Clinton campaign and President Obama have confirmed that there is no evidence of hacking in any of these states.

So, without any evidence of widespread fraud, and therefore no possibility of altering the election results, what is Dr. Stein up to?  Various possibilities have been raised.  Stein herself says that she is concerned about the integrity of the electoral process.  To her credit, the Green Party has previously filed requests for recounts which could not affect the overall result (e.g. Ohio in 2012) and includes as part of its platform a call for automatic recounts in all elections.  This is a reasonably noble justification, if you ignore the fact that recounts for all but the most closely fought elections are a complete waste of time and money, pointlessly robbing election officials of their evenings and weekends in the run-up to Christmas.  There is also the matter of the mysteriously increasing fundraising target, which suggests that Stein is using the recount, at least in part, to fill her party’s coffers (she has already raised nearly twice as much as she had to spend on the election).

Regardless, the prospect of recounts at this late stage raises a number of interesting constitutional questions and a lot of uninformed speculation about the different possible consequences.

In Michigan, a candidate must request a recount within 48 hours of the votes being certified.  Michigan is certifying its vote today, so any petition for a recount must be received before the same time on Wednesday.  Contrary to some reports, I don’t see that the statute requires petitions to be presented in each county – the presidential election is administered by the board of state canvassers, so a single petition may be filed there (MCL § 168.879(c)).  The petition must allege “that the candidate is aggrieved on account of fraud or mistake in the canvass of the votes” but is not required to contain specifics (MCL § 168.879(b)).  Although it’s hard to imagine how Stein can have been defrauded (what’s the difference between getting 1% of the vote and 1.5%?), the rules in Michigan only require an allegation of fraud – there is no requirement that the allegation be credible.  On that basis, it’s hard to imagine anyone saying no to a recount request in Michigan.

The situation in Pennsylvania is different.  Voters can petition for recounts in each precinct, but a statewide recount using this method would require signatures of over 30,000 people spread across each voting district and it would seem impossible for Stein to organise this before the end of the day (although she may find enough signatures to trigger isolated recounts in certain precincts) (25 PS § 3262).  Today is also the deadline for challenging the results in court.  Petitioners are required to present a prima facie case that there was widespread fraud (i.e., that it is probable that fraud occurred) within 20 days of the election (i.e., today) (25 PS § 3458).  As discussed above, it seems unlikely that this threshold would be met, and even more unlikely that a court would order an expensive and time-consuming recount on the basis of the mere suspicion of impropriety given a 70,000 vote margin (in which case, the whole exercise is pointless as, again, Hillary needs to win all three states to win the presidency).

Turning to the federal level, the president is not directly elected by the voters but is instead elected by “electors” allocated on the basis of the popular vote in each state.  Each state has a number of electors equal to its total representation in Congress (i.e., the number of representatives plus two senators).  Most states, with a few exceptions, allocate electors to candidates on a winner-take-all basis – the candidate who receives a plurality of the votes in that state receives the right to appoint all of that state’s electors.

The Constitution gives Congress the power “to determine the time of choosing the electors and the date on which they shall give their votes” (Article II, Section 1, paragraph 4).  In exercising that power, Congress has said that the electors must cast their votes “on the first Monday after the second Wednesday in December” (3 USC § 7) – this year, on the 19th of December.  It is unclear from the legislation what happens if the electors do not vote on this date, but conceivably if a state has not completed its recount by the 19th then its electoral votes may not be counted.

Congress also has the power to reject a state’s electors, but only if their appointment is certified after the date 6 days before the date of the vote – this year, 6 days before the 19th, i.e. the 13th of December (3 USC § 5).  Note that the electors are treated as having been validly appointed unless and until they are rejected by Congress, and so it is very unlikely that a Republican Congress (it is the incoming Congress that votes) would reject electors in favour of Trump (although the Democrats could table objections and force the Republicans to vote them down).

What happens if Wisconsin, Michigan and Pennsylvania don’t appoint electors in time (apart from the fact that the citizens of those states would have been disenfranchised by Stein’s electoral integrity campaign)?  Well, the Constitution says that the person who receives the greatest number of votes becomes president, so long as the number of votes received represents a majority of the electors appointed (Amendment XII).  If Wisconsin, Michigan and Pennsylvania don’t appoint electors, the threshold for winning is reduced from 270 to 245.  Trump will still have 260 electoral votes, and so will still become the president.

On the off chance that the Supreme Court decides that the threshold remains 270 (which I don’t think is supported by the text of the Constitution), each state’s delegation in Congress would receive one vote.  As Republicans control the majority of state delegations, Trump would still win (although in this scenario there is a possibility, likely to be political suicide, that Republicans could choose to elect someone else).  Note that it is very unlikely that the election would go to Congress, even if the recounts are not completed in time (contrary to much of what you read online).

So, Trump is still going to be president.

But this whole process should be salutatory lesson to states to get their recount provisions in order.  Recounts should be strictly limited to situations where they could conceivably change the outcome: where the margin is extremely small, or there is a prima facie case that the outcome of the election has been determined by fraud.  The deadlines for challenges also need to be moved up – there is no excuse for waiting until the last minute to file a challenge; it needs to be possible to complete any recounts before the electors are required to vote.

It’s hard to argue against counting the votes again – just to be sure – until you start thinking of the consequences.  What is to stop a Republican candidate from seizing the presidency by waiting until the last moment to request recounts in states which went for his opponent and, by doing so, preventing those states from sending electors?  This time it’s the Greens causing havoc – next time it might be someone else, and to greater effect.

There’s a time for counting, but unless we want to undermine the very democratic processes we seek to uphold, we need to learn there’s also a time to stop.

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