Federal judge: WI recount can go on ... for now

Wisconsin taxpayers get to keep using their resources for a recount until at least December 9th, a federal judge ruled late yesterday. Responding to a motion for a temporary injunction, Judge James Peterson ruled that the recount’s operations would not pose sufficient harm prior to a full hearing on the merits of lawsuits filed by two super-PACs and a Trump voter from Wisconsin. The lawsuits rely on the Supreme Court’s Bush v Gore decision on disparate treatment of ballots, a claim with some irony:

The lawsuit contends, in part, that the state’s recount process is unconstitutional because ballots aren’t treated equally in all cases — a standard used in the 2000 U.S. Supreme Court case that halted a recount in Florida and left Bush as the winner of that year’s presidential race with Democrat Al Gore. Trump and supporters also filed actions Friday seeking to head off separate recounts in Michigan and Pennsylvania before those efforts could get started.

In Wisconsin, some counties are recounting ballots by hand and some by machine. The same was true during the initial count the night of and days after the election.

That was Jill Stein’s complaint, too. Her team argued for a statewide hand recount in order to bypass the machines that they claim were manipulated. They have provided no evidence at all of such tampering, and a state judge rejected the request because of that lack of evidence. If the federal court winds up rejecting the recount because of the differing methods of counting ballots in each county, that will be quite the Catch-22, and it may force Wisconsin to create a uniform statewide process for recounts in the future.

It won’t make much difference either way. As predicted, the recounts show almost no changes to the outcome, and in fact demonstrate a remarkable degree of Election Night precision:

Numbers released by the Wisconsin Elections Commission on Friday showed little change to the vote totals here so far.

That’s true in the state’s largest city, said Neil Albrecht, the head of the Milwaukee Election Commission. He estimated that one-quarter of the city’s ballots have already been processed.

After two days, more than 500 precincts around the state have completed their recounts, about one-seventh of the total. Excluding those in the city of Milwaukee*, where absentee ballot recounts have not yet been completed (and are conducted centrally rather than in the precincts), the overall change thus far has been to add five votes to Trump’s totals and three to Hillary Clinton’s. Stein has picked up 24 votes, mostly from one county that had left off her vote total in error on its tally sheet. At this rate, we’re looking at an overall shift of less than 100 votes in Trump’s lead of 22,000 — and in his favor, not Hillary’s, and certainly not Stein’s.

At this pace, the state should finish its recount before the safe-harbor deadline of December 13th, assuming that the federal court doesn’t order it shut down. In the future, Wisconsin governor Scott Walker wants to make it much more difficult for fringe candidates to tie up election results:

“Well I think we need to call it what it is, this is nothing more than a fundraising scheme for the Green Party,” Governor Walker said. “They’re using this to both raise money for the recount, for which they haven’t committed to using all of it for a recount, they’ll probably keep some of it, and then they’ll create a long-term mailing list that they’ll use for their political function.”

Green Party candidate Jill Stein requested the recount, citing concerns election machines used in the state may have been tampered with. Stein has yet to provide evidence of such tampering, as Walker believes that the outcome in the Badger State likely won’t change.

“Even though it seems ridiculous to put clerks across the state, who are in the process of making sure property tax bills are out, collecting those property taxes through the end of the year, they’ve already had a big election cycle to go through,” said Walker. “It’s unfortunate, but it’s legal, they can do it.”

Other states might want to consider a review of their recount requirements as well. This will be an exercise in futility and a waste of resources across the board in service to conspiracy theorists who won’t be satisfied with the result, and in service to a fringe candidate who’s spending more on the recount than she did with the campaign. It’s absurd.

Addendum: I wrote about the futility of recounts on this scale in my column at The Week:

Beyond that, though, there are many thousands of reasons not to demand a recount. Specifically, there are 10,700 reasons in Michigan, 22,000 in Wisconsin, and 68,000 in Pennsylvania. Those are the votes that Clinton would have to make up in a recount to change the outcome in each state, and she’d need to succeed in all three of those states to change the Electoral College outcome. No recount has ever produced a vote change of that magnitude; no recount has even come close to it. FiveThirtyEight‘s Carl Bialik, working off of data from FairVote, noted that only three of 27 statewide recounts since 2000 have succeeded in changing the outcome of an election — and only when the original totals were much closer than any of those seen in the 2016 race.

“The mean swing between the top two candidates in the 27 recounts was 282 votes, with a median of 219,” Bialik explains. “The biggest swing came in Florida’s 2000 presidential election recount, when Al Gore cut 1,247 votes off George W. Bush’s lead, ultimately not enough to flip the state to his column.”

What about the recounts that have succeeded? Well, I had a ringside seat for one in Minnesota, when Al Franken turned an Election Night defeat into a U.S. Senate seat seven months later. The recount turned into the most bruising, partisan, and contentious political fight the state had ever seen. After several months of recounting, ballot challenges, and numerous court appearances, the change in the gap between Franken and incumbent Norm Coleman was 527 votes — a miniscule amount of the 2.6 million votes cast. It was just enough to erase Coleman’s 215-vote lead after the state-certified canvassing a week after the election and give Franken a 312-vote win in its place.

Stein continues to insist that she wants to pursue the recounts to demand change in voting infrastructure. But her recounts, like those 27 that have preceded them since 2000, would likely make the opposite point — that our vote-counting infrastructure actually gets accurate and reliable results. Even the Florida debacle in 2000 changed the results by 0.022 percent, just about the same percentage as in 2008’s Minnesota recount. It would take 10 times that kind of scale to flip Michigan, and 30 times that scale to flip Wisconsin. Stein’s recount demands envision vote swings on a patently ridiculous scale.

Note *: I took out two other precincts where recount had clearly not been completed.