Stein's recount effort in Wisconsin is irresponsible and unwarranted
© Greg Nash

During the recently concluded presidential campaign, Donald TrumpDonald John TrumpSupreme Court comes to Trump's aid on immigration Trump is failing on trade policy Trump holds call with Netanyahu to discuss possible US-Israel defense treaty MORE was widely and properly criticized for refusing to provide assurances that he would accept the results. To claim, as he did, that the “system is rigged” in the absence of any proof was said to be beyond the pale.

But, as they say, the “worm has now turned.” Green Party candidate Jill Stein has amassed millions from somewhere to seek recounts in a handful of strategic states. Recounts in close elections are nothing special — although they rarely move many votes or change the outcomes.

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What is intriguing here is why the recounts are being demanded. Stein, of course, received something in the neighborhood of 1% of the vote and cannot benefit herself. But she concedes that she has no reason to believe that a recount will change the outcome at all.

This raises the question of whether Stein is abusing the process. Take my home state of Wisconsin, one of two in which Stein has actually filed a petition for recount. While our state Elections Commission seems to believe that any candidate can demand a recount as long as he or she pays for it, this is not obviously so.

Our state law seems to recall the allegation of some reason to believe that the vote count is wrong. It requires that a candidate seeking a recount file a sworn petition stating that he or she “believes that a mistake or fraud has been committed … in a specified ward or municipality in the counting and return of the votes cast … or that another specified defect, irregularity, or illegality occurred in the conduct of the election.” 

This is, to be sure, a low bar — the statute does not give the state the right to judge the adequacy or truth of the candidates’ stated belief — but it does seem to be jurisdictional, i.e, there can be no recount unless a candidate is willing to say, under oath, that there is some reason to believe that a mistake or fraud has occurred.

But Stein’s petition does not say that. It says merely that fraud may have occurred – not because anything in the results suggests so — but because fraud is possible. It says, essentially, that computers can be hacked, that there have been reported incidents of hacking involving political parties or voter registration records. Something like that could have happened in Wisconsin. Who knows?

The closest Stein comes to alleging a belief in “fraud” or “mistake” in the counting of the votes is a generalized statement of a single “irregularity” — a supposed “significant increase” in the number of absentee ballots which “could be attributed to a breach of the state’s electronic voter database.”

That’s it. There is no statement of a reason to believe that such a breach “has” happened. Stein’s petition attaches the affidavit of Alex Halderman, a computer scientist who has used angst over the election of Donald Trump to advance his own belief that U.S. election systems are too vulnerable to hacking.

But however valid Halderman’s concerns might be, his affidavit explains how an election could be hacked. It does not say that Halderman believes that it has been and, indeed, both he and Stein have made public statements that they don’t really believe that it has.

Wisconsin is nevertheless proceeding with the recount but Stein has doubled down, going to court to get a hand recount. She hasn’t a prayer. To obtain a court ordered hand recount, state law requires by clear and convincing evidence that that a recount using machines will produce an incorrect result and that there is a substantial probability that recounting the ballots by hand will produce a more correct result and change the outcome of the election.

While Wisconsin law may need to be tightened, this appears to be an abuse of the recount process. Stein’s petition arguably falls short of the jurisdictional requirements for a recount petition and it certainly does not serve the purpose of the recount statute, i.e., to address some actual concern that election results are wrong and not to make some theoretical point about the generalized possibility that something “could” happen. What Stein wants is not a recount, but an audit- something that Wisconsin actually does on a regular basis.

Although Stein will be forced to bear the cost of the recount (indeed, it is likely that her effort is nothing more than a fundraising gambit for the Green Party), this form of abuse is not without its costs. State officials will be forced to work around the clock — ignoring work that they would otherwise do — because presidential elections come with a deadline.

Wisconsin must resolve any election “disputes” (even contrived ones) by December 13 so that it’s results will be deemed conclusive under federal law. The presidential electors will meet on December 18. 

Wisconsin officials claim that they will complete the recount in time. They had better. If it appears they will not, they can count on litigation to halt the recount and ensure that Wisconsin voters will not be disenfranchised.

But in the meantime, a narrative that the election was – or might have been – “rigged” will be spun for those willing to believe it. It turns out that President–elect Trump was not the irresponsible one.

​Rick Esenberg is president and general counsel at the Wisconsin Institute for Law & Liberty, a legal and policy center dedicated to free markets and individual liberty.


 

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