Michigan 2016 Recount on the Verge of Being Blocked by Trump and GOP

The Trump campaign and Michigan Republicans won a series of legal rulings Wednesday that may be the beginning of the end of the presidential recount in the state where Hillary Clinton stood the best chance of overturning Donald Trump's election night victory.

While the Greens said they would file appeals, Green presidential candidate Jill Stein’s attempt to verify the vote in the three states giving Donald Trump an Electoral College majority faced a rough road Wednesday. Opposition from Republican court challenges and local election officials mounted during the day and a federal court judge lifted a previous order stopping Michigan officials from shutting down the recount that started only two days before.

"We are deeply disappointed in [U.S. District Court] Judge Goldsmith's ruling today, which gives deference to partisan state judges in Michigan who are attempting to block the state's recount simply because of the person who made the request, without regard for the integrity of Michigan's electoral system," Stein's lawyers said in a statement, vowing to appeal to the state Supreme Court to challenge a Michigan election board's 3-1 vote earlier in the day to cancel the recount.

"The history of this country is one where federal courts step in to protect the constitutional voting rights of all Americans, especially when they are under attack in the states," Stein's lawyers said. "Well today, they are under brutal attack. Backed by Michigan Republicans, Donald Trump—who himself has repeatedly alleged widespread voter fraud and a 'rigged election'—suddenly sees no need for a routine verification of the democratic process in Michigan. His efforts to suppress the vote count is a stunning about-face, even by Trump's own standards."

The Stein campaign's Michigan recount is now hanging by the thinnest of threads, as its last resort, Michigan's Supreme Court, has two justices on it who Trump has named as possible U.S. Supreme Court nominees. The Stein campaign filed motions Tuesday to remove those justices from hearing their appeal.

"Make no mistake, we are not backing down from this fight—a fight to protect the hard-fought, hard-won civil and voting rights of all Americans," Stein's lawyers said. "Our campaign will seek immediate relief in Michigan's Supreme Court to ensure the recount that is already underway in all Michigan counties continues. With so many irregularities in Michigan — including more than 75,000 under-votes, many in urban areas, and widespread carelessness, and perhaps interference, with preserving ballots — there is a real possibility the rights of voters in Michigan may have been suppressed during this election. We need this recount to ensure the fairness, accuracy and integrity of the vote."

A House of Cards

Goldsmith's ruling capped a day in which difficulties were unfolding in the three recount states—Michigan, Pennsylvania and Wisconsin. But it was Michigan where the recount effort seemed most imperiled, showing just how hard it is to recount presidential ballots and bring trust-inspiring transparency to the vote count process.

Earlier Wednesday, Stein's campaign was emphasizing that all Michigan counties had begun their recounts. But throughout most of the day, state election officials, the Stein campaign, the Trump campaign and its allies like Michigan Attorney General Bill Schuette waited for a federal district court judge to rule on whether the recount could continue and whether he would lift an order barring the state from stopping the recount. The state board that launched the recount Monday voted Wednesday to reverse its decision, meaning state election officials may seek to suspend the recount while the case goes before its high court.

But Wednesday's legal jousting was not the only resistance to verifying Michigan’s vote. Clinton lost Michigan by under 11,000 votes. Across the state—notably in southeast counties where Hillary Clinton won by a two-to-one margin in communities of color—local election officials were disqualifying an astounding number of precincts from being recounted. This is the region with the greatest potential for a Clinton upset, because it is where tens of thousands of scanned ballots did not record a presidential vote.

In Detroit, for example, hundreds of precincts—59 percent—were disqualified from the recount because officials found sloppy record-keeping such as precinct-level paper ballot totals not matching the number of voters who signed poll books, or the boxes storing paper ballots had damaged seals.

Thus, while the Stein campaign is fighting the recount in court, the reality on the ground is local election officials, backed by the state election director, were refusing to look at ballots that would verify if Trump was the winner and could begin to confirm that many people, 75,000 statewide, didn’t vote for president—or plausibly, didn’t have their ink-marked paper ballots correctly scanned.

Attorneys working with election integrity activists independent of the Stein campaign identified sections in Michigan election law that explicitly said “canvassers”—the term for the local officials overseeing the recounts—have the “power and authority” to examine all of the ballots, and can decide whether or not to proceed when discrepancies surface. Nobody has filed any lawsuits over that standard, because of the higher stakes litigation. Nonetheless, Michigan is not just showing that the Trump campaign and its allies can stop a legitimate democratic process, but it is also spotlighting how local election officials are turning away from investigating perhaps the most easily solvable question: the presidential undervotes. Hand recounts would reveal whether voters marked their ballots.

Meanwhile, in Wisconsin, which has been recounting ballots since last week and is 70 percent complete, it does not appear a Clinton upset is in the making. However, election integrity activists discovered what could be a major pathway for electronically altering the reported vote count—which the Stein campaign has cited in its legal pleadings as a rationale for verifying the vote and needs to be investigated. They submitted affidavits by more than a half-dozen top computer scientists saying this is a legitimate concern.

In Milwaukee and other counties, the activists found that one of the most widely used ballot scanners in the state has a built-in cellular phone modem to wirelessly submit precinct vote totals to a countywide tabulator. That raises the question of whether the electronically transmitted totals match the paper ballots. In many locales, that question is going unanswered. That's because key suburban counties where the activists want to take a closer look are not recounting paper ballots by hand. They are rescanning them, after Stein lost a state court legal fight over hand recounts. Each county can decide how to recount and two-thirds are doing hand counts.

Thus, it looks like Wisconsin’s recount is not going to reverse Trump’s 22,000-vote lead. On Tuesday, the Associated Press said he had widened his margin by 146 votes, with 23 of the state’s 72 counties finishing the recoun. In those completed counties, Trump gained 105 votes and Clinton lost 41. On Friday, a federal court will hear a suit filed by pro-Trump super PACs to stop the recount.

In Wisconsin and Michigan, in differing ways and above and beyond the court fights, many election officials are dodging hand counts to verify the computer-produced vote count totals. Moreover, when activists spotlight a issue worthy of investigation, such as the celluar connectivity of Wisconsin's voting machines, their concerns are not being addressed or incorporated.  


That same frustrating scenario was also evident in Pennsylvania Wednesday, when a Philadelphia court rejected Stein’s motion to conduct a full “forensic analysis of voting machines and their software.” That would attempt to see if precinct vote totals had been electronically altered en route to countywide tabulators.

Elsewhere across the state, there are other obstacles. Many counties are refusing to act on citizen-initiated recount petitions, a process in which any three voters from a single precinct can file a notarized request and pay a nominal fee to launch a recount. Organizer Aquene Fairchild said that 1,300 petitions had been submitted statewide in 375 precincts, but “at least 50 were turned away when they tried to file.”

That pattern of obstructionism prompted the Stein campaign to file a federal lawsuit Monday, calling the state’s election system “a national disgrace” and demanding a full statewide recount. A hearing will be held Friday. Meanwhile, the state’s Republican Party and Trump campaign warned that the lawsuit threatens Pennsylvania's ability to certify its election before the December 13 federal deadline, which starts the Electoral College clock. The Electoral College meets December 19.

Elsewhere in the state, the closer activists looked at the reported vote counts, the more serious questions emerged. Academics not working for the Stein campaign said their analysis of the latest vote counts in 10 Philly-area counties found, as of Sunday night, showed that Clinton was ahead by 6.2 percent on the paper ballots—mostly absentee and overseas military votes—while Trump led by 6.8 percent on the paperless voting machinery. It is an open question whether that disparity will be officially explored.

Trump's lead over Clinton is now about 44,000 out of more than 6 million votes cast in Pennsylvania. That is still just short of Pennsylvania's 0.5 percent trigger for an automatic statewide recount. Meanwhile, the state's top consitutional officers, including the Secretary of the Commonwealth overseeing any recount, are all Democrats who have not supported the Greens.

As of Wednesday, the Stein campaign raised more than $7 million from individual contributions averaging under $50 to pursue the recount. Their investment may not change the presidential results, but they are spotlighting exactly why Americans do not have the answers they deserve to explain how Trump apparently won and where his base resides.

That does little to advance the public's confidence in elections. Regardless of Stein's legal fights, local election officials in key counties who are resisting hand-counts are not taking the high road. Whether they know it or not, these civil servants who otherwise believe deeply in democracy have tarnished their profession. There's nothing good for America in that. 

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