And then there was only Wisconsin. As widely expected, US District Court Judge Paul S. Diamond denied a demand from Jill Stein to order a statewide recount in Pennsylvania. Time had run out on that option, Diamond ruled, and he did not want to “disenfranchise some six million Pennsylvania voters.”
A federal judge rejected a Green Party-backed request to recount paper ballots in Pennsylvania’s presidential election, won by Republican Donald Trump, and scan some counties’ election systems for signs of hacking.
So far, no publication of the order has emerged, but this outcome was all but certain on Friday. The court took days to hear the case, and then Diamond took the weekend to consider the request. With tomorrow’s safe-harbor deadline, time had already run out on the statewide recount Stein demanded. Now time has all but run out on an appeal, too, after this exercise of clock management by Diamond.
Not that it would have made any difference. States have the jurisdiction to set procedures and qualifiers for recount demands, and the role of the federal judiciary is to ensure that they are applied evenly and rationally. In Michigan, the federal district court ruled that a two-day delay in beginning a qualified recount demand served no rational purpose, to which the 6th District Court of Appeal agreed — but emphasized that qualification for the recount was still the purview of the state. When Michigan’s appellate court ordered the Board of Canvassers to reject the application, that was the ruling that governed, and it mooted the district court’s injunction.
Undoubtedly Stein’s attorneys will file an appeal, this time in the 3rd Circuit, but the outcome will almost certainly be the same. It’s too late for a recount, especially when requested by a fourth-place finisher that has no stake or standing in a potential outcome change.
Update: Diamond’s opinion has been published here. In his 31-page ruling, Diamond scorches Stein for waiting until the last minute to file the recount request and then playing games in the state court before showing up on his door. The opening paragraph neatly sums up Diamond’s thinking:
Unsuccessful Green Party Candidate Jill Stein and Pennsylvania voter Randall Reitz allege that because Pennsylvania’s voting machines might have been “hacked” during last month’s election, I must order the Commonwealth to conduct a recount of the votes cast for President. There are at least six separate grounds requiring me to deny Plaintiffs’ Motion. Most importantly, there is no credible evidence that any “hack” occurred, and compelling evidence that Pennsylvania’s voting system was not in any way compromised. Moreover, Plaintiffs’ lack of standing, the likely absence of federal jurisdiction, and Plaintiffs’ unexplained, highly prejudicial delay in seeking a recount are all fatal to their claims for immediate relief. Further, Plaintiffs have not met any of the requirements for the issuance of a mandatory emergency injunction. Finally, granting the relief Plaintiffs seek would make it impossible for the Commonwealth to certify its Presidential Electors by December 13 (as required by federal law), thus inexcusably disenfranchising some six million Pennsylvania voters. For all these reasons, I am compelled to refuse Plaintiffs’ request for injunctive relief.
Later, Diamond elaborated on the timing. Stein et al showed up at the last minute without the needed preparation and didn’t want to pay the bond required by state law — and didn’t even bother to ask the state court to reduce it:
On Monday, November 28, 2016—the last possible day under Pennsylvania law to bring a contest proceeding—Pennsylvania voters organized by Dr. Stein and represented by her counsel in the instant case filed in Commonwealth Court an election contest, alleging that they had “grave concerns about the integrity of electronic voting machines used in their districts” because of the possibility that the machines could have been hacked. (Maazel Decl. Ex. 37, Doc. No. 9-40 (Nov. 28, 2016 Petition).) The petition was without any of the five required affidavits, was some two pages in length, and did not include any allegation that hacking had actually occurred. (See id.) In light of the rapidly approaching federal safe harbor date, the Commonwealth Court set a hearing for Monday, December 5, 2016 at 10:00 a.m, and ordered the petitioners to post a $1,000,000 bond no later than December 5 at 5:00 p.m. (after the hearing). (See Intervenors’ Resp. Ex. 3, Doc. No. 38-2 (Nov. 29, 2016 Order).) The Court stated that it would modify the amount of the bond for good cause. (See id.)
The petitioners never asked the Commonwealth Court to reduce the size of the bond. Instead, on December 3, 2016, they voluntarily withdrew their action, explaining that they could not “afford to post the $1,000,000 bond required by the Court.”
Furthermore, Diamond cited the decision by the Michigan state appellate court in his conclusion that Stein lacked standing in the first place. In fact, as Diamond notes, the plaintiffs never bothered to offer an explanation of why they might have standing for a recount:
At the December 9 hearing, Intervenors argued persuasively that Plaintiffs lack standing. (See Hr’g Tr. 99:7-100:19.) Remarkably, Plaintiffs did not respond. Even though Dr. Stein was present and could have testified as to why she is an aggrieved party with standing to seek a recount, she was not called. …
Neither Plaintiff has alleged that she or he has suffered an actual injury. Dr. Stein is not a Pennsylvania voter and does not allege that a recount will change the Pennsylvania vote total in her favor. Although Mr. Reitz is a Pennsylvania voter, he has not alleged that his vote was inaccurately recorded or tallied in the final Pennsylvania vote count. Plaintiffs’ allegation that voting machines may be “hackable,” and the seemingly rhetorical question they pose respecting the accuracy of the vote count, simply do not constitute injury-in-fact. …
Finally, Plaintiffs have not shown that the extraordinary relief they seek—a hand recount of a sample of paper ballots in optical-scan Counties and a forensic examination of six Counties’ election management systems—will redress their alleged injuries. Dr. Stein received less than 1% of the vote in Pennsylvania and does not allege that the recount and forensic examination will yield the votes necessary for her to prevail in Pennsylvania’s election. Mr. Reitz voted on a DRE machine in Montgomery County and has not explained how a forensic examination of a sample of County election management computer systems would vindicate his individual right to vote. (See Reitz Decl. ¶¶ 2, 15, Doc. No. 9-2.) There is no evidence before me even suggesting that a recount or audit of any kind would confirm whether the vote of Mr. Reitz or anyone else was counted inaccurately, or would somehow correct an inaccurately recorded vote.
In sum, because Plaintiffs have alleged speculative injuries that are not personal to them and could not be redressed by the relief they seek (or any relief I could order), they are without standing to bring their claims.
In other words, Stein offered half-baked hypotheticals unaccompanied by a shred of actual evidence about supposed irregularities that would have done her no harm at all.
Stein and her attorneys will no doubt appeal this to the 3rd Circuit, but Diamond’s detailed and damning response will be difficult to overcome.
Update: I honestly hadn’t linked the timing of the court action to Stein’s timing of her recount demand until reading this tweet:
@EdMorrissey the last minute filing was the kicker for me… bad game to play. In kind he gave her last minute ruling.
— Jacqueline Dee (@jdeegraham) December 12, 2016