What We Learned from the Wisconsin, Michigan, and Pennsylvania Recounts

Marc Erik Elias
Dec 14, 2016 · 5 min read

Two weeks ago I published a Medium post outlining how the Clinton campaign would respond to Jill Stein’s plan to seek recounts in three states — Wisconsin, Michigan and Pennsylvania.

I explained that we had not planned on seeking recounts because we had not uncovered actionable evidence of hacking or tampering with voting systems, equipment or results. However, I made clear that we would participate in any recount initiated by others to ensure the process proceeded in a manner that was fair to all sides. Though many have mischaracterized our efforts, I acknowledged in my Medium post (and subsequently in a Washington Post Q&A) that the results were not likely to change materially and that “the number of votes separating Donald Trump and Hillary Clinton in the closest of these states — Michigan — well exceeds the largest margin ever overcome in a recount.”

With the recounts no longer in process, and the electoral college safe harbor date now upon us, I wanted to write to update our supporters and detractors on how the process worked (or did not work) and what we learned.

In Wisconsin, the recount proceeded relatively smoothly thanks to the cooperation of the state and local officials. We urged the state, and the courts, to ensure that the recount was conducted by hand statewide. That request was rejected. Nevertheless, the state has a process to conduct a post-election ballot audit, and most jurisdictions in the state chose to recount by hand. Those that did not recount by hand recounted via machine. An effort by two pro-Trump super PACs to halt the recount was resisted by the Republican Attorney General and rejected by a federal court. As predicted, the recounted results showed little change versus the initial results.

In contrast, Michigan halted its hand recount after the Republican Attorney General sued the state’s own election board for ordering the recount at all. The narrow legal issue was whether Dr. Stein was “aggrieved” by the election results. The larger, more troubling issue is whether states ought to be picking and choosing which candidates they think are really “aggrieved” and which are not. If North Carolina law says that only candidates within 10,000 votes may seek a recount, that is a clear standard. So, too, is a state law, like that in Wisconsin, that does not set a vote threshold to seek a recount. What isn’t fair, or likely constitutional, is a standardless approach where state officials or courts use their own judgment to decide if they think it’s close enough. Michigan may believe that Dr. Stein couldn’t possibly win and she isn’t “aggrieved,” but the Michigan law doesn’t set a threshold and nobody should want states exercising those judgments after the vote has taken place.

Finally, in Pennsylvania, the recount effort never got off the ground. Due to Pennsylvania’s arcane laws, the use of touch screen voting machines, and organizing challenges, the effort to obtain a statewide recount failed. Similarly, the efforts to obtain a forensic examination of voting systems suffered the same fate. In the end, the margin in Pennsylvania was the largest of the three states, but the process for recounting and confirming those results was the most difficult.

So, where do we go from here? These recounts have confirmed some of what we expected, but exposed problems with our system of post-election review of elections.

First, though Wisconsin and Pennsylvania law require the state to conduct post-election audits to verify the accuracy of results, Michigan law does not. That should change. Every state should require, automatically, that it conduct a meaningful post-election audit of its voting systems. This is not a partisan issue. A post-election audit provides confidence in the election results and identifies any problems with voting equipment or tabulation systems. It is inexpensive, easy and does not delay certification of results. It will also cut down on recounts.

Second, states should revisit their thresholds for permitting recounts. Personally, I favor a lower, but reasonable, threshold to avoid unnecessary recounts. But, once the threshold is set, it should be followed. No exceptions.

Third, all election records should be subject to public inspection and open record laws. The public should have an unconditional right to access all records surrounding elections. From training materials, to machine calibration logs, to information about machine software, to lists of those who cast provisional ballots, it should all be public in real time. If ever there was an area where “sunlight is the best disinfectant,” it is this one.

Fourth, states should revise their post-election processes to ensure adequate time to conduct post-election audits (including forensic audits where necessary) and recounts quickly and efficiently, and — in presidential elections in particular — in time to meet the electoral college safe-harbor. One of the biggest misconceptions about the Stein recounts was that the Clinton campaign was trying to delay election results until after the safe-harbor. Nothing could be further from the truth. Every action we took (or did not take), and every statement we made, was calculated to ensure every state would meet that safe-harbor. It would be anathema to our democratic system, and contrary to the right to vote, for state legislatures to substitute their judgment for the will of the voters in selecting electors.

Finally, we must recognize that technological advances have given our nation’s adversaries a greater ability to influence and compromise our elections than ever before. Whether it is a direct hack of voting systems or the compromising of state voter files, we know that foreign powers are now tempted to infiltrate our election systems. As the Michigan Federal Court said: “The issues that Plaintiffs raise are serious indeed. The vulnerability of our system of voting poses the threat of a potentially devastating attack on the integrity of our election system.” This is something states and the federal government must work to address in time for the next federal elections in 2018. Our government must designate our election apparatuses as core infrastructure.

Those of us who worked for Secretary Clinton, supported her, voted for her, and were inspired by her, must continue the fight for voting rights. From reauthorization of the Voting Rights Act, to combating barriers to voting, we owe it to her to continue the fight. We must fight for her commonsense voting agenda — including automatic voter registration and at least 20 days of early voting. Part of that fight is making sure people have the right to have their vote counted and counted accurately. Secretary Clinton showed us that it is a fight worth having, and it is one that I will continue to pursue, until all Americans can truly be said to have free and fair opportunity to exercise their right to vote — a right that the Supreme Court has long recognized as among our most fundamental, because it preserves all of our other rights.