by Steven Rosenfeld April 7, 2019
Why Many 2020 Swing States Will Produce Recount Headaches
(Photo by Steven Rosenfeld)
If the 2020 presidential election hinges on recounts in the closest battleground states, there could be a crisis even greater than the 2000 election where the U.S. Supreme Court ended a Florida recount in its infamous Bush v. Gore ruling.
That’s because the laws and timetables governing recounts in many swing states differ widely and aren’t necessarily geared toward transparent granular counting—and that’s apart from President Trump’s habit of attacking election outcomes he doesn’t like by claiming they were stolen.
“I see what the states have put out there. They have not proven realistic,” said Matthew Weil, senior associate director of the Democracy Project at the Bipartisan Policy Center, speaking of the policies and legal landscape that unfold after election night. The BPC is soon expected to issue a report on the topic. “It would be very helpful to really look at what a realistic and rational policy would be, and we can work toward that goal.”
Should presidential recounts occur, it appears that history will not repeat what happened in 2016—when courts shut down two of the three recounts filed by the Green Party: in Michigan and Pennsylvania but not Wisconsin. But the chances of voters seeing a convincing process may prove as frustrating as 2016.
“By conventional standards, the 2016 presidential recount was close, but not by recount standards,” said Chris Sautter, a nationally known lawyer specializing in post–Election Day procedures. “Nonetheless, a truly accurate recount to fully verify the results was not possible in any of the three states because laws in those states didn’t permit meaningful recounts, and because even had the laws permitted proper recounts, most of Pennsylvania and a few counties in Wisconsin did not use election equipment that produced paper records of each vote.”
In 2016, three purple states tipped the Electoral College and made Trump president. Millions of Americans were stunned. The Green Party’s presidential nominee, Jill Stein, stepped into the “what happened?” void, raising $7.3 million and filing for recounts in the states with the three closest margins: Michigan, Wisconsin, and Pennsylvania.
The recounts accomplished little of what recounts are supposed to do—validate or update the earlier results. They were blocked in Michigan, stopped in Pennsylvania after barely beginning, and, in Wisconsin, where they were completed after revealing inconsistencies in some vote-counting machinery, Trump emerged with several hundred more votes. Instead of resolving ambiguities and bringing legitimacy to the results, the narrative was dogged by suspicions of hacked machinery, slash-and-burn political rhetoric, contentious court battles and rulings, resistance to re-examining count votes by some local officials and wide media ridicule. These factors did little to satisfy Americans seeking answers.
Since 2016, Michigan, Pennsylvania and Wisconsin have updated some laws or counting protocols in response to the recount, but not all of those revisions are intended to open up the process. Looking more widely, most possible 2020 swing states each have different post–Election Day rules, counting timetables and deadlines, some of which are hard to meet without squeezing in a thorough recount.
With the possible exception of Florida, most of the several dozen recount-related bills now in legislatures were not from likely presidential battleground states, heading toward passage, nor involved big changes. Or, as in Arizona, there’s a proposed bill to make it more expensive to file for a recount if it’s not automatic—a deterrent to recounting.
Many voters do not realize that elections don’t end on election night, where the reported totals are unofficial and incomplete. After all of the ballots are collected and machinery is packed up, a process called the canvass begins. This involves elected officials and civil servants, typically at the county level, compiling and reconciling the totals from their various voting options (early, at precincts, etc.) and still-arriving mailed-in votes. This process typically concludes seven or 10 days later with local certification of winners. State certification follows soon afterward.
If the top contenders are less than one percent apart (this slightly varies state-by-state), a recount will be triggered. Depending on the margins, the government or candidates will pay for it. Recounts also follow differing rules depending on the state. Some, like in Florida, only count problematic ballots—with no votes or too many votes. (Election audits are generally not part of this phase, but occur after the election is officially over.)
To choose the president, states have to finish this process before the Electoral College meets about six weeks later. But post-election timetables vary. In Michigan, the process can take no more than 40 days. In Ohio, it’s 31 days. In Wisconsin, 24 days. In Nevada and Pennsylvania, it’s 21 days. In Florida, it’s 14 days—although there is legislation to add five days. These timelines were set years ago, before large numbers of voters started voting by mail, which takes time to process, and Congress created the provisional ballot safeguard (for people not on voter lists), which also must be verified before counting.
What follows close contests can appear confusing — and may not inspire confidence. Before three simultaneous statewide recounts were triggered in Florida last fall, including for U.S. senator and for governor, the results kept changing as mail ballots came in. In Broward County, Republicans rallied outside of county offices and loudly accused the election workers inside of rigging the results. In Broward County, Palm Beach County and elsewhere, officials didn’t finish in time, which meant under law that the earlier unofficial results stood. Michigan has a similar law on the books.
“It’s very weird, from a government-administration perspective, to be putting out unofficial totals, and then people are seeing them shift,” Weil said. “We now see a lot of concern—i.e., ‘Is something going on if these numbers are shifting?’ Obviously, that’s a part of the process, but I do think we need to evaluate some of those reporting policies.”
Those 2016 Recounts
What have 2016’s closest swing states done since that year’s presidential recounts?
To recap, several weeks after Election Day, the Greens filed for three recounts: In Michigan, where the results found Donald Trump led by roughly 11,000 votes; in Wisconsin, where he led by 23,000 votes; and in Pennsylvania, by 44,000 votes.
What followed were political brawls. In Michigan, there was fierce pushback by the GOP, where a red-run state government, and courts at the state and federal levels shut down the process. Later studies by Michigan academics argued that Hillary Clinton would likely have won the state in a recount (but not the election) if half of Detroit’s ballots weren’t disqualified. Michigan has a 1954 law requiring problematic results to be investigated. But more recent rules disqualify ballots from being recounted if the number of voters signing in at precincts did not match the reported vote total, or, as was seen in 2016, ballot storage boxes were banged up or damaged—as signs of possible tampering. Frustrations in Michigan’s governing circles with the city’s elections led to the disqualification rule, retired election officials have said.
Pennsylvania saw differently dissatisfying results in 2016. A full recount never occurred, as many counties had finished the canvass before the Greens filed—including a mountain of petitions submitted at the local level. The state’s courts, a silent blue executive branch and a federal court eventually shut it down. Late last fall, Greens settled a suit with the state where it pledged to use all paper-ballots for 2020.
Only Wisconsin finished its presidential recount, where Trump won 400 more votes, and counties, much to the Greens’ consternation, used different recounting methods—some scanning ballots, others counting by hand.
After 2016, the American Law Institute has convened a panel of election scholars to publish an update of what it considers the best principles and legislative language for states to resolve “ballot-counting disputes.” Their detailed report delves into the canvass, recounts and a final stage, contesting results. Its principles are clear: avoid ambiguity in the counting rules and procedures to maximize the legitimacy of the election. That means embracing a transparent process and exercising a “duty of non-partisanship” as a referee.
Should presidential recounts recur in these states in 2020, there will be some differences. To start, two of these states won’t let marginal contenders file. Wisconsin and Michigan have passed laws to block filings by candidates who do not stand a chance at winning—“a good faith belief that they would have had a reasonable chance of winning,” said Shawn Starkey, communication director for Michigan’s Department of State.
That policy was aimed at the next proverbial Stein, as were other changes to Michigan law. Depending on the number of votes separating the leading candidate and a petitioner, the per-precinct filing fees can range from $25 to $250, Starkey said. (Last fall, the state had 4,797 precincts, a number that fluctuates as local populations change.) Michigan also changed some deadlines in its canvass process after 2016. It gave counties one more day before starting that process after Election Day (by 9 a.m. on Thursday, not by 1 p.m. on Wednesday), but then required an “expedited” process if the presidential candidate’s lead was less than 25,000 votes statewide, he said. Counties also must report “any out-of-balance precincts that weren’t reconciled during the canvass.”
The Michigan Department of State rule that disqualified Detroit’s ballots remains on the books, Starkey said. (In early March, a bill was introduced to amend that law; but it was sitting in a committee.) With regard to auditing the voting machinery or first tabulations, the state currently does not start those until “after the canvass process and official results certification,” he said. In other words, Michigan has not made recounting an easier or more open process.
Wisconsin and Pennsylvania
Wisconsin’s GOP-run government also blocked future Green-style recounts after 2016. But its state election agency, the Wisconsin Election Commission (WEC), has since taken steps to make results more trustworthy before officially declaring winners. Before the November 2018 election, the WEC doubled the number of wards—the most local election jurisdiction—required to double check their preliminary results, “including at least one in each of the 72 counties,” said WEC spokesman Reid Magney. “Wisconsin has several different makes and models of voting equipment in use, and each type will be audited at least five times.”
Those audits, which involved manually reviewing and counting votes, looked at 135,712 ballots in November, a March 11 report submitted to the WEC said, noting that “was the largest audit of its kind undertaken in the State of Wisconsin.” The report said that the “only noted issue arose” when an older touch-screen electronic voting system used in rural counties saw jams of printers that were supposed to produce a paper record.
“The audit results indicated there were no identifiable bugs, errors, or failure of the tabulation voting equipment,” the report said. “While there were discrepancies identified during the audit, they were the result of human error that occurred as part of the process conducting the audit. Additionally, the results of the audit did not identify programming errors that impacted how the audited voting equipment counted votes.”
The WEC could not order every county to participate in its pre-certification audits, said Magney. But nine counties took part, he said, including some of the biggest population centers. If Wisconsin held the key to who would prevail in 2020’s presidential election, it’s possible an absence of consistent statewide protocols could become an issue in post-election litigation. But Wisconsin has made the process more accountable than what existed in 2016, even though marginal candidates can no longer file for a recount.
In Pennsylvania, the prospective presidential 2020 recount landscape is not yet clear. Last November, the state settled a lawsuit with the Greens where it pledged to replace all of its voting machinery before 2020’s election with paper ballot–based voting systems. (There’s an open question if electronic ballot-marking devices, which some counties are acquiring and critics say can be hacked, would violate that settlement. The Greens’ attorney did not return a request for comment.) That settlement also requires the state to implement pre-certification audits by 2021; however, that would be after the next presidential election.
Stepping back, Pennsylvania is undergoing a makeover of its voting systems and rules. In July 2018, Governor Tom Wolf, a Democrat, announced the state was stepping up cybersecurity surrounding election systems. The current legislative session has numerous bills introduced to open up the voting process, primarily by joining other states that use voting by mail and vote centers. There are no recount-related bills, however.
Compared to the latest policies in Wisconsin, the state’s recount laws are fairly strict. Pennsylvania’s recounts are triggered if the leading candidate’s margin is less than 0.5 percent, and it has to take place by the third Wednesday after Election Day and completed by the next Tuesday—a tight 21-day window. A state elections agency spokeswoman said it was too soon to say what changes might be coming before 2020.
“It’s a little too early for us to predict what changes are coming in Pennsylvania in 2020,” Ellen Lyon, deputy director of the office of communications and press for its Department of State, said. “Several state legislators have election reform bills out there, in addition to the governor’s plan, but they haven’t been acted on yet.”
The Other Swing States
Perhaps most notable is what may unfold in Florida, where several bills are moving that would make any recount, including for president, more thorough and transparent. There’s legislation to extend its recounting period, because last November several counties could not finish their recounts in time. There is also legislation to allow the most granular vote auditing system now available to be used in recounts. That approach rescans every paper ballot and then compares those results to earlier tabulations. Should this bill pass and be signed into law, Florida would be in a class by itself among swing states for recounts.
But stepping back from that prospect, the big picture surrounding the nation’s vote verification landscape is uneven, as the Bipartisan Policy Center’s Weil said. In state after state, regulations and timetables can be out of sync with the pragmatic details of conducting modern elections. The BPC has convened three task forces to improve the “voting experience,” with one focused on vote counting. Weil said the goal is making elections more trustworthy, not making do with today’s status quo.
“There are a lot of people out there helping election officials work within the system that exists in their state, and fewer looking at the policies that are clearly prescribing what their options are—and maybe those options are not the best options,” Weil said. “I think we need to make sure that the laws line up to ensure that election officials are fully successful, because at this point in a lot of states, either they are pushing up against the laws, or they have resigned themselves to the fact that their laws are never going to allow them to do what makes the voting experience better.”
Will the vote-counting landscape look better in 2020 if there are presidential recounts? As Kevin Kennedy, Wisconsin’s retired state election director, said, “Unless it’s a very close election, nobody’s paying attention.” But if there is a contested outcome, by the time the canvassing and recounting begins, it would be too late to improve the process.
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