by Chris Sautter and Jake Schlachter
The Wisconsin recount is headed for disaster, but there’s still a chance to save it. We need a federal lawsuit requiring a hand recount of all paper ballots.
We’re one week into the historic Wisconsin recount, prompted in no small part by widespread concerns about the reliability of electronic voting machines and their susceptibility to tampering, fraud, and computer hacking. The difference in Wisconsin is currently about 22,000 votes, or 0.75%. Patriotic, democracy-loving Americans share a common value of wanting to see that every vote is counted fairly, accurately, and honestly, especially in such a close and crucial election as this one.
Let’s get to know these machines better. The optical scanning computers used in Wisconsin and other states, especially the infamous ES&S DS-200, too often fail to count votes where voter intent could be discerned by hand. These are officially called “undervotes” or “overvotes,” but in many instances could be called “not counted votes.” A lightly marked ballot filled out by an elderly or handicapped person, a checkmark instead of a filled-in oval, or even a ballot cast using the wrong pen color can be missed or “no votes” in a machine count but real, legal votes in a hand count. In Florida, a shocking 1.67% of the people wearing an “I Voted” sticker didn’t actually. In Michigan, where the margin is only 11,000 votes, there are 75,000 not counted votes in Detroit alone. Hand counts will identify and include legal votes missed by the machine; anyone who says otherwise is simply wrong.
Back to Wisconsin. The disparity between machine counting and hand counting is why the Stein and Clinton campaigns petitioned last week for a judicial order that would require all counties to recount paper ballots by hand. Last Tuesday, the judge affirmed that truth while denying the order. She urged each county to count by hand but failed to require it.
Forty-seven of Wisconsin’s 72 counties chose the faster and more reliable method of hand counting the ballots. Contrary to popular belief, recounting a single race is faster by hand, when ballots can be easily sorted, stacked, and counted, than it is to feed thousands of ballots through the machines one at a time. But that means 25 counties are using the same unreliable machines for their recount as on election night.
The disparity in methods means that the machine-counted votes in those 25 counties are counted less than the hand-counted votes in the other 47. This violates the Equal Protection Clause and was the central holding in Bush v. Gore, that similar ballots must be counted in the same way. Since hand counts are being used in many of Wisconsin’s rural and predominantly white counties and machines are being used in many counties with large minority populations like Milwaukee and Racine, the failure to use a hand recount in all counties creates uneven results and racial disparities in how votes are counted.
That alone is reason for a federal lawsuit, and indeed, several Republican SuperPACs have sued in federal court to stop the recount on those very grounds. Not to make sure that every vote is counted fairly, mind you, but for the very partisan reason of making sure that Donald Trump stays the declared winner, never mind the voters’ intent.
The Jill Stein campaign — or failing that, We The People — must file a federal lawsuit immediately to force all Wisconsin counties to count by hand. Failure to do so could cost Americans the recount we need to ensure that every vote is counted fairly. 150,000 American voters donated to Jill Stein so she could bring about a fair recount on everyone’s behalf. If a lawsuit to get the votes counted fairly costs more money, Americans will donate more money.
Racial disparities and uneven vote counting methods aren’t the only problems that a federal lawsuit is needed to fix. Let’s recap some of what else observers have seen so far:
• In St. Croix County, recount observers discovered that tamper-protection seals on five voting machines used in the recount were broken. Officials later confirmed they were broken before Election Day as well. The same officials declined to conduct a hand count of all ballots and instead recounted ballots using those five machines.
• In Waukesha, a county with a history of troubled elections, officials are failing to reconcile the poll list in each ward, counting votes where the voter’s signature is missing from the poll book, and allowing ballot remakes that can’t be matched to originals. In other words, Waukesha is counting ballots that shouldn’t be counted.
• In Racine County, election officials are rejecting ballots by absentee/in-person voters whose ballot envelope does not contain a witness signature. Other counties are accepting identical ballots on the grounds that such voters have been witnessed by election officials. This disparate practice is also a violation of Wisconsin law and the Equal Protection Clause.
• The DS-200s create digital ballot images when they scan each ballot — images that are public records. Since it’s the scanned ballot images rather than the paper ballot itself that these machines are counting, to destroy the image is to destroy the chain of custody. That’s exactly what officials in Brown County are doing. Officials in Fond Du Lac County are refusing to make the images available to observers to compare to the machine totals.
• And yes, despite FBI Director James Comey’s testimony to Congress on September 28th, many of Wisconsin’s (and America’s) voting machines are connected to the Internet. The ES&S DS-200, in use in 15 Wisconsin counties, comes installed with a cellular modem to transmit results via the Internet on election night. Election observers in Wisconsin have confirmed that several counties, including the large counties of Milwaukee and Waukesha, use this capability. This also requires that the central county tabulator, which receives the transmitted results, is on the Internet, too. We suspect this is not an intermittent connection but that the county server is connected for longer periods, including during pre-election testing. Each county has discretion to create its own procedures, so whether or not these 15 systems are operated with even basic security precautions is a function of the people and practices in place in 15 separate offices, with little if any outside oversight. This opens up all the nightmare scenarios for tampering and hacking in our elections that computer scientists have warned us about. Against an adversary with nation-state cyberwarfare capabilities, all bets are off.
Uncertainty about our voting system’s exposure to hacking is poisonous to democracy, especially in an upset election like this one. The most urgent issue in America right now is to be able to confirm that every vote was counted fairly, accurately, and honestly, and if not, for patriotic Americans to raise bloody hell about it.
This is why the Jill Stein and Roque De La Fuente campaigns petitioned for a recount in Wisconsin, and it’s why 150,000 Americans donated $7.2M (and counting) to make it happen. Americans care whether our votes were counted honestly! The only way to know for sure is to have a hand count of the paper ballots. If there’s a problem with the machines but we use the machines to count and recount for us, we’ll never know.
The recount in Wisconsin can’t be allowed to proceed as a farce. A federal lawsuit to force all counties to hand count their ballots should be filed at once. The Jill Stein campaign should bring this, or if they are stretched too thin by outrageous administrative fees imposed by partisan election officials, or countersuits brought by Republican SuperPACs, the burden falls to us, the American people who cast the votes and called for and paid for this recount, to see it through.
And while it is urgent to file this lawsuit immediately, let no one say that there isn’t enough time to accurately, fairly, and honestly count America’s votes. Our democracy depends on nothing less.
Chris Sautter is an experienced recount attorney who has been advising on the Wisconsin presidential recount. Jake Schlachter is an organizer in Madison, Wisconsin and part of the national movement for election integrity.