Recount Fiascos Reveal the Profoundly Pathetic State of Voting in America

The Pennsylvania legal fight continues, but lessons are learned about how states don't verify the vote.

Photo Credit: www.facebook.com/JillStein2016

Green Party presidential candidate Jill Stein’s recounts in the three states that gave Donald Trump his Electoral College majority have come to a close, not changing the official results and leaving the public even more wary about the integrity of American elections.

After several weeks, $7.3 million in donations from 161,000 donors, obstruction by top Republicans and Democrats, election officials who rejected the most accurate recount procedures, slights against communities of color where voting machines broke on Election Day but recounts were blocked afterward, new hacking pathways discovered, and unyielding responses by state and federal judges who didn’t think much of recounting votes or using best practices, Stein announced Tuesday that her presidential recount was mostly over—and now America needed to heed its lessons.

“What we are saying is simply that we have a right to a verified vote, and to a voting system that is accurate, secure and just,” Stein said. “There is enormous evidence that kind of voting system, which is accurate, secure and just, does not exist. You can look, for example, at the 87 [electronic ballot scanning] voting machines that failed in Detroit. This kind of mechanical failure is highly concentrated in communities of color. In fact, the U.S. Civil Rights Commission has said that the odds of your vote being miscounted or discounted are 900 percent greater in communities of color. This isn’t some hypothetical. This has been demonstrated over and over.”

Stein and the recount’s leaders and lawyers held a press conference to discuss the lessons learned on Tuesday, even as they are pursuing a federal lawsuit against Pennsylvania for what they say are its unconstitutional actions to stymie a recount. In Michigan, the Trump campaign and top GOP state officials forced its recount to shut down, even though it was not recounting all the paper ballots. Only Wisconsin finished, after more than tripling its fee and then failing to hand-count ballots in the most controversial jurisdictions.  

Stein’s unprecedented multi-state effort revealed faulty machinery that is error-prone and vulnerable to tampering and hacking; bureaucratic hurdles and out-of-date state laws that created absurdly high barriers to recounts; and red flags that communities of color were disenfranchised. It sought but was blocked from examining the software and “forensics” of electronic voting, even as the outgoing White House ordered a new review of Russian interference in the election, including hacking. Indeed, activists observing the recount found new ways to access key vote-counting nodes—cellular modems—but were ignored by officials and most press.

“We have shown, and some of our expert witnesses, [University of Michigan computer scientist] Alex Halderman in particular, has shown, that he and his students actually have hacked into these various machines in the laboratory,” Stein said. “They are insecure. They are poorly protected. They are essentially without modern security precautions. It is simple for anyone with a degree in computer science to hack into them. There is evidence of their vulnerability.”     

Stein’s main takeaway was how absurd it is that America does not verify its presidential vote count—or most elections, for that matter.

“We verify our withdrawals from a back account. Certainly, building verification into our voting system should not be like some kind of preposterous idea,” she said. “This should be built in. It should be an automatic quality assurance that is part and parcel of voting. We should not have to proves that fraud has taken place, or that hacking or machine error has taken place, in order to have verification. We do it with all kinds of sports games as well. If we do it with a tennis match, don’t our votes deserve as much care and protection?”
 
Institutional Barriers and Vote Count Suppression

Stein’s team listed many of the obstacles they encountered in trying to verify the vote in the three states that gave Trump his Electoral College majority. When they began, they had little idea of the barriers ahead, because even though the Greens launched presidential recounts in Ohio and New Mexico in 2004, they were in three new states with different procedures and laws: Michigan, Wisconsin and Pennsylvania.

When Stein launched her fundraising drive as the Thanksgiving holiday began, she did not expect to raise nearly $6 million in small contributions in the first 48 hours. Her team was told by Wisconsin officials that their recount fee would be upward of $1 million, and they estimated they'd need $2 million per state for the recounts. When they went to formally file, Stein's lawyers were told the fee in Wisconsin would be $3.4 million, more than triple what they expected. In Pennsylvania, officials said the 100 citizens who signed a statewide recount petition had to pay $1 million—one of the reasons her campaign filed a federal suit. Michigan’s fee was also over $1 million, prompting Republican legislators to send a bill to its House retroactively charging Stein's campaign millions more.

When the campaign went into state court in Wisconsin seeking an order for hand-counting the ballots—not rescanning them with the same machines that have error rates, as all electronic scanners do—a judge said she was sympathetic but refused to issue an order requiring counties to follow that best practice.

“After we filed the petition and paid that astronomical price, we didn’t even get the recount that was necessary,” Jonathan Abady, Stein's lead counsel, said. “The court reviewing this process made a significant statement, that the gold standard for recounting in Wisconsin and elsewhere, is a hand review of the paper ballots. And not withstanding that, there was a huge use of machines, which is just referring paper ballots into the same potentially defective machinery.”

What happened in Detroit was arguably the recount's most disturbing chapter, because it showed an institutional disregard for voting rights didn’t end on Election Day but continued into the vote counting and recounting process. Mel Figueroa, press director for the Stein campaign, said Detroit showcased an "electoral Jim Crow” that was a microcosm of issues seen in communities of color since Florida’s recount in 2000, Ohio’s and New Mexico’s recounts in 2004, and other states since, including the 2016 election.  

“What we are talking about is mass disenfranchisement of voters of color in poorly served, under-resourced communities that have long been subject to many issues in regards to voting and have long expressed concerns,” she said. “Even before the voting booth, voters of color are subjected to restrictive voter ID laws, felony disenfranchisement, purged from the voter rolls by interstate Crosscheck [a GOP-run interstate program] and subject to long lines due to the closing of polling places in minority communities. What we have since found after people have gone to the voting booth is that many, many votes are simply deemed spoiled or not counted.”

'An Electoral Jim Crow'

The initial "red flag" was the existence of 75,335 undervotes in Michigan, or ballots that were filled out except for the choice of president, Figueroa said. “That was a rate that happened 70 percent higher than the number of undervotes that were counted in 2012. Many of these are in Oakland and Wayne counties, which includes Detroit, raising this very real possibility that communities of color may have been disenfranchised by an unreliable counting of the vote. A shocking 87 voting machines broke on Election Day, many jamming when voters sent ballots to optical scanners resulting in erroneous vote counts. These are decade-old, poorly maintained, poorly calibrated machines that simply may have not recorded the vote.”

Hillary Clinton lost to Donald Trump by less than 11,000 votes in Michigan, a photo finish in a state with several million votes cast. In the Detroit area, where Clinton did best, she typically won by a two-to-one margin. Thus, if 20,000 of the so-called undervotes turned out to be Detroit-area ballots that were incorrectly scanned, that could have thrown the state to Clinton—winning not the presidency, but a key state. Instead what happened was that state and local election officials said more than half of Detroit’s precincts could not be recounted due to sloppy record-keeping and care of the ballots between Election Day and the recount’s start. Figueroa said those details and the official decisions behind them is what Jim Crow looks like in 2016’s elections.

“These revelations reflect the U.S. Civil Rights Commission’s finding that voters of color are at massively increased risk, up to 900 percent more risk, of having their votes misread or simply tossed out by human error, or by badly maintained or poorly calibrated machines in underserved communities," she said. “The recount process has also put a spotlight on the state’s overly restrictive recount law. That law excludes precincts from a recount if there is a discrepancy between the number of voters in a precinct’s poll book and the number of ballots in the ballot box. That had disqualified many precincts from actually being able to be recounted. If the Michigan recount had proceeded, as many as half of Detroit’s votes and many more in surrounding urban areas may have been deemed ineligible for a recount, due to this law.”

And if anybody thinks Republicans care about free and fair elections, they should think again, Figueroa said, because while the recount was being fought over, the state’s GOP legislators were passing new laws destined to suppress minority voters.

“Michigan Republicans' efforts to suppress voting rights were not limited to their obstruction of the recount,” she said. “During the recount, House Republicans [in its legislature] approved a strict voter ID proposal, despite evidence that the plan could disenfranchise properly registered voters. With all of that, one of the main lessons is that reform is needed now… These are longstanding problems that have been brought to light."

As Stein said, the recounts in Michigan and Wisconsin “looked everywhere except in the areas of greatest risk.”

What Recounts Are Supposed To Do

Phillip Stark, a statistics professor and associate dean of mathematical and physical sciences at UC Berkeley, said it was absurd that the recounts in Wisconsin and Michigan devolved into legal fights and institutional stonewalling over procedures, instead of giving the public something it can trust—evidence-based counting and audits for accuracy.

“Our government isn’t a democracy if we have to blindly trust that votes were tallied accurately,” he said. “Any way whatsoever of counting votes makes errors, even if there isn’t any malicious inside or outside actor, or hacking of the equipment or the software. But that said, anything done on computers can be hacked, and computers will never do a perfect job of ascertaining voter intent on ballots.”

Stark said there is only one way to get the evidence-based audits and recounts—the paper ballots cast have to be hand-counted and compared to the electronic machine totals. That can be done on a random basis for audits and on a more comprehensive basis for recounts.

“What we need are evidence-based elections, not procedure-baed elections,’ he said. “Local election officials should be required to give strong evidence that the answer that they are presenting is correct, not just say we followed the rules."

“The way to get that evidence is to have paper ballots and routine auditing of the electronic results against the paper ballots,” Stark continued. “The three Cs of election integrity are to create a paper trail, care for the paper trail and then check the electronic results against the paper trail. We need to check in every election, whether the errors, whatever their source, were big enough to change who won. There are always going to be errors. The question is whether they are big enough to matter.”

A handful of liberal counties have been experimenting with the open-source and verifiable systems he wants to see everywhere—namely where Los Angeles, Austin, Texas, and San Francisco are located. But that is a far cry, Stark said, from the way almost all of the rest of America counts and verifies their votes.

“What a mess we have,” Stein said. “The recount has shone a light on that mess and has really lifted up the call for a voting system we can trust. It’s not rocket science how to fix this. This is basic democracy. This is a bedrock foundation of a government we can trust and this is how we fix all the other crises that people are faced with.”

What Now?

Perhaps the most hopeful comments were made by David Cobb, the recount campaign manager and 2004 Green presidential candidate. In 2004, the party led recount efforts in Ohio and New Mexico, which Cobb said led many states to abandon the riskiest voting machinery and a few to update their audit and recount procedures. He hoped that would be the case after the dust settles in the 2016 election.

“The efforts to recount in both Ohio and New Mexico actually helped to underscore just how important that is,” Cobb said, “because the reality is that the demands for recounts on Ohio and an effort in New Mexico in 2004 really launched the election integrity movement in this country.  [U.S.] Representative John Conyers held hearings and published a scathing report called, ‘What Went Wrong in Ohio?’ That recount effort in 2004 literally halted the proliferation of the direct recording equipment [DRE or paperless machines], also known as black box touchscreen machines.”

Cobb recounted that often-forgotten history. Before Florida’s recount in 2000 was stopped by the Supreme Court, Americans were mortified to learn about “hanging chads," or the dangling pieces of paper from computer punch cards. That led to the Help America Vote Act of 2002, in which several billion dollars was made available to states to buy new voting machines. Those electronic systems, including some that are entirely paperless and have no audit trail, were sold to election officials by an industry exploiting a windfall.

“All of the states were rushing forward with these black box voting machines,” Cobb said, until the 2004 election recounts halted that rush. “Because of the spotlight in 2004, we were able to halt the proliferation of that. In fact, in California, then-Secretary of State Debra Bowen initiated a top-to-bottom review of their voting systems that literally outlawed the black box voting machines in California. They were abolished in most states across the country.”

New Mexico banned the machines, adopted a robust new audit law and state-funded recount process.

“I am saying all of this to underscore the critical importance that the recounts play in helping to improve our democratic system,” Cobb said, suggesting the primary outcome of the recounts is promotiing and expanding the election integrity movement's agenda.

Steven Rosenfeld covers national political issues for AlterNet, including America's democracy and voting rights. He is the author of several books on elections and the co-author of Who Controls Our Schools: How Billionaire-Sponsored Privatization Is Destroying Democracy and the Charter School Industry (AlterNet eBook, 2016).

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