Green Party Recount Update: Lawyers, Activists, Organizers Get Going in Wisconsin and Pennsylvania

Editor's note: This report has been updated.

The Green Party filed for a 2016 presidential recount in Wisconsin on Friday, after the party's nominee Jill Stein raised more than $5 million from grassroots donations as of midday. The Greens are also planning to file in Pennsylvania and Michigan early next week.

Wisconsin election adminstrator Michael Haas said the Greens met the state's deadline, adding that it will now calculate the precise fee estimated at $1.1 million. Rocky Roque De La Fuente, the Reform and American Delta Party nominee, also filed ror a recount.

“We have assembled an internal team to direct the recount, we have been in close consultation with our county clerk partners, and have arranged for legal representation by the Wisconsin Department of Justice,” Haas said. “We plan to hold a teleconference meeting for county clerks next week and anticipate the recount will begin late in the week after the Stein campaign has paid the recount fee, which we are still calculating.”

John Bonifaz, a voting rights attorney who helped organize the 2016 recount and was lead counsel for the Green and Libertarian Parties’ 2004 presidential recount in Ohio, said the Green's Wisconsin recount petition justified why it was needed.

“We’ll point to the fact that there are certain [electronic voting] systems in the state of Wisconsin that are being used, which have been proven to be vulnerable to being tampered with or being hacked. And the state of California banned the use of those systems, but Wisconsin, with some restrictions, still uses them,” he said. “So that’s point one. Given the fact that those systems are still in use, it’s important too make sure that we verify the vote.”

“The other systems, the paper ballot systems, we’ve determined, are, in fact, showing a discrepancy between the jurisdictions where the paper ballots have been used and the touch-screen machines have been used,” he continued, referring to different margin of victory depending on the voting technology. “That discrepancy has given rise further to the point of verifying the vote. There are different theories as to why that discrepancy exists. One can argue the demographics in the jurisdictions with the touch screen machines point to why there is that discrepancy. But until we actually verify the vote we won’t know the answers to this.”

The recount was far more intricate process than the state audits routinely conducted after every election, Haas said. His statement signaling the involvement of the state's Department of Justice suggested there are likely to be court fights over the process of how ballots are to be recounted, by machine or hand, and the timetable for doing so.

"A recount is different than an audit and is more rigorous," Haas' said. "More than 100 reporting units across the state were randomly selected for a separate audit of their voting equipmnt as required by state law, and that process has already begun. Electronic voting equipment audits determine whether all properly-marked ballots are accurately tabulated by the equipment. In a recount, all ballots (including those that were originally hand counted) are examined to determine voter intent before being retabulated. In addition, the county boards of canvassers will examine other documents, including poll lists, written absentee applications, rejected absentee ballots, and provisional ballots before counting the votes."

The Greens were busy Friday preparing for the recount filing. The legal process is being handed over to a New York City election law firm. Organizers held a press event in Milwaukee and then went to the capital, Madison, to file with the Wisconsin Elections Commission. A WEC staffer reached early Friday said with nearly 3 million ballots, the recount would take several weeks. It must be completed by December 13 under federal law.

Pennsylvania

The process and organizing in Pennsylvania could not be more different. In Pennsylvania, citizens can submit petitions to each county board of elections to recount their precincts up to five days after the official canvas, or countywide count, is completed. There is a big grassroots effort underway to do that, despite mainstreammedia reports which incorrectly said the filing window has ended for the 2016 election. That deadline is for parties filing with the state, not for citizens filing with local election boards.

“Based on the law as we read it, all counties must complete their canvass. Voters then have the right to file for five days afterward,” said Aquene Fairchild, who is working with a team of 120 volunteers to collect and coordinate petitions to be delivered to local boards of election. “We will start filing today, but many offices are closed until Monday.”

The Pennsylvania team started calling county election boards on Wednesday, after the Greens announced their fundraising drive. So far, they have only identified four counties that completed their canvass more than five days ago, forgoing the possibility of a recount. One is Luzerne, in northeastern Pennsylvania, where 125,000 votes were cast and Trump had 58 percent of the vote compared to Clinton’s 39 percent. It was seen as a bellwether for the state.

“We are filing with county boards of election for each precinct; it’s not a court process,” Fairchild said, adding that the Greens are seeking more volunteers (parcvolunteer@gmail.com). On the ground, efforts are being organized though VotePA.us, an election integrity group that has long advocated for greater transparency in elections.

Organizers are digging into the intricacies of the process in each state. In Pennsylvania, three-fourths of the counties use entirely paperless electronic voting, meaning there is no paper trail to verify—although they could review the machine’s test reports from Election Day, as well as potentially examine each county's central tabulators. In Wisconsin, in contrast, counties using electronic machines produce a cash register-like paper tape that records each vote, which can be compared to reported totals. These are examples of the details now under discussion.

“Wisconsin has the most decentralized election system in the United States,” Haas said. “The system has strong local control coupled with state oversight, resting on the partnership between the Wisconsin Elections Commission, the 72 county clerks, and the 1,854 municipal clerks. State law clearly gives each county’s board of canvassers the primary authority to conduct the recount, and to decide which ballots should and should not be counted. Recounting votes is an open, transparent process in which each of the candidates may have representatives present to raise objections, and where the public may be present to observe.”

That level of complexity, coupled with filing fees in the three state exceeding $2.5 million, is why the Greens said they needed to raise approximately $6 million to file, litigate and observe the recount.

Backlash Already?

The mainstream media have not taken the recount as a serious effort to verify who won the three states that gave Trump an Electoral College victory. On one prominent election law blog, the moderator said the Greens had “opportunistically” raised their fundraising goals, and were not required to use the recount funds for that purpose.

That’s not correct, however. The party is operating under a 2006 Federal Elections Commission advisory opinion, 2006-24, that says the recount funds have to be segregated and used for that purpose. That ruling says:

“Money raised by the recount funds will not be used to pay for pre-election or Election Day expenses, such as administrative costs, get-out-the-vote activities or communication expenses. Instead, the recount funds will be used only to pay for 'expenses resulting from a recount, election contest, counting of provisional and absentee ballots and ballots cast in polling places,' as well as 'post-election litigation and administrative-proceeding expenses concerning the casting and counting of ballots during the Federal election, fees for the payment of staff assisting the recount or election contest efforts, and administrative and overhead expenses in connection with recounts and election contests' ('recount activities')."

The Green Party has have been taking donations via Jill Stein’s campaign webpage, which crossed the $5 million threshold about 1pm EST on Friday, and the state of Ohio Green Party. ReCountNow’s webpage is taking donations for volunteer activities, such as observing the count and precinct-based investigations.