The State of Wisconsin beginning this week will experience a rare recount of a statewide race and an unprecedented recount of a presidential contest. History suggests that the odds of a recount changing the November 8 outcome are minuscule. But the process could have a profound impact on the seemingly settled presidential race nonetheless.
The gap Hillary Clinton would have to close to take Wisconsin’s 10 electoral votes from Donald Trump appears insurmountable; it’s far greater than the 7, 316 votes that separated Supreme Court Justice David Prosser from challenger JoAnne Kloppenberg in their 2011 election contest. A recount closed the gap to 7,006. A simple recount of the votes cast on Election Day almost certainly would likely yield similar results; movement of a few hundred votes but not enough to change the outcome. But those behind the recount are not looking for such a basic review. Instead, they seek a process which could take weeks and put Wisconsin’s electoral votes in jeopardy.
Is There “There” There?
Green Party candidate Jill Stein began raising the funds to finance a recount after a group of computer scientists urged Clinton to request recounts in Michigan, Pennsylvania and Wisconsin, saying they believe a trend of Clinton performing worse in counties that use electronic voting systems could be the result of hacking attack on those systems. But both they and Stein concede there is no concrete evidence of such hacking. The Clinton campaign (and the Barack Obama administration) initially said there was no reason to question the outcome of the election. The Clinton campaign has now joined in the Wisconsin recount effort.
The only thing remotely resembling an irregularity was a much-hyped discrepancy between the number of registered voters and votes cast in Outagamie County. However, WBAY-TV in Green Bay reported that the discrepancy was the result of Election Night human error and has since been corrected. But an interview with voting rights attorney John Bonifaz, founder of the National Voting Rights Institute, who has been advising the recount effort, published by Newsweek Sunday, suggests a strategy of disruption might be the long-term goal behind the recount.
The Bonifaz interview foreshadows a prolonged process that could potentially, and perhaps intentionally, bring chaos to would had appeared to be a settled election:
“If the tallies of the recount differ from the results on election night, the state must go with the tallies from the recount. If discrepancies are shown, it will open the door to further investigation. There will have be a forensic examination of machines. There will be likely litigation. Another issue, which came up in Bush v. Gore, is what happens if we are still counting votes by December 13, the date on which the Electoral College has to be counted. It is anybody’s guess what will happen. Bush v. Gore is not precedent for any other case, and I think we would argue that we should keep counting…All the candidates are offered an opportunity to observe the recount. If they see anything they don’t agree with, a stray mark that wasn’t intended to be a vote, for example, they can litigate that.”
The 2011 State Supreme Court recount began on April 27 and took until May 20 because of a complication in Waukesha County. The level of scrutiny that’s expected to be requested in the presidential recall would mean it would take much longer than that. That would mean missing critical electoral college deadlines and likely judicial intervention. From the National Archives and Records Administration website:
December 13, 2016
States must make final decisions in any controversies over the appointment of their electors at least six days before the meeting of the Electors. This is so their electoral votes will be presumed valid when presented to Congress.
Decisions by states’ courts are conclusive, if decided under laws enacted before Election Day.
December 19, 2016
The Electors meet in their state and vote for President and Vice President on separate ballots. The electors record their votes on six “Certificates of Vote,” which are paired with the six remaining Certificates of Ascertainment.
At a meeting Monday morning, Wisconsin Elections Commission staff will request the commission approve a timeline that will start the recount in all 72 counties on Thursday. Commission Administrator Michael Haas earlier told the Milwaukee Journal Sentinel that the Stein campaign’s expected request to have the recount done by hand, a process that would almost certainly surpass those deadlines, would take a judge’s order. In theory, missing the December 19 deadline could put Wisconsin in jeopardy of not having it’s 10 electoral votes counted. The same could be true of Michigan and Pennsylvania if Stein’s recount effort causes similar complications in those states. Bonifaz told Newsweek that could lead to a Florida 2000 scenario, only worse:
Well, it is important to note that we have a 4 to 4 court, so, if there is a tie vote at the Supreme Court, the court that has the authority on this is the federal appeals court hearing the case. If the recount is not finished before December 13, a court might have to rule. And it is possible that a federal appeals court with jurisdiction in Wisconsin will allow a recount to continue, while a federal appeals court with jurisdiction in Pennsylvania denies it. It’s a complicated situation when you don’t have a nine- person Supreme Court.
If the goal is to create a constitutional crisis by not having a declared winner of the election by January 20, 2017, Inauguration Day, it is beyond a longshot. But Bonfiaz’s scenario of election attorneys litigating every stray mark found on ballots in three states is frighteningly reminiscent of the war over “hanging chads” in Florida 16 years ago. And the idea of a tied Supreme court hearing cases from three states is nightmarish. Even if the effort doesn’t prolong the start of the Trump administration it would very likely achieve the secondary goal of de-legitimizing it.
To this day, despite overwhelming evidence to the contrary, many Democrats insist George W. Bush did not carry Florida and was illegitimately sworn in as President of the United States. Consider the post-election protests that were seen in cities around the country and try to imagine what the response would be to a multi-state litigation that still ends with Trump taking office. Half the country will remain convinced for decades to come that Donald Trump stole the presidency from Hillary Clinton.
That possibility alone may have been all the motivation needed for the Clinton campaign to join the effort and for tens of millions of Americans who did not vote for Donald Trump to become very, very excited about it.