It’s over in Michigan. A truncated Supreme Court, down two justices due to recusals, have refused to overturn an appellate court ruling to restart the recount:
BREAKING: In a rare 3-2 decision, Michigan Supreme Court denies @DrJillStein her request for appeal on lower court's recount ruling.
— Chad Livengood (@ChadLivengood) December 9, 2016
The Michigan Supreme Court on Friday denied Green Party candidate Jill Stein’s presidential appeal to restart a partially completed recount, meaning President-elect Donald Trump won Michigan by 10,704 votes over Democrat Hillary Clinton.
In a 3-2 ruling, the court said the Michigan Court of Appeals correctly ruled that Stein was ineligible to pursue a recount.
The appeals court ruling on Stein’s “aggrieved” status will hold up as precedent, in other words. That makes sense; the state has a rational reason to keep fringe fourth-place finishers from tying up an election, especially in presidential contests where the Electoral College deadline follows rapidly. As the appellate court ruled earlier, that’s a decision Michigan’s Board of Canvassers should have reached from the beginning.
It’s not looking any better in the Keystone State for Jill Stein, either. When Stein couldn’t put up the money for a statewide hand recount in Pennsylvania, she took the state to federal court to force the state to conduct one anyway. On Monday, US district court Judge Paul Diamond promptly put off a hearing for four days, scheduling it for earlier today. After Stein’s attorneys finally made their case for federal intervention in a state process, Diamond decided to think it over for a while longer … and issue his ruling within hours of the safe-harbor deadline of December 13th.
Philly.com reporter Jeremy Roebuck reported on the coincidence:
A federal judge in Philadelphia will rule Monday on the Green Party-backed petition for a Pennsylvania recount, leaving just one day before the state needs to certify its presidential vote total for the electoral college.
Judge Paul Diamond signaled his plan after a Friday afternoon hearing in which supporters of Green Party nominee Jill Stein pushed their bid for a recount, citing concerns about the integrity of Pennsylvania’s voting system and the technology it uses.
Roebuck also reported Diamond’s skepticism on his Twitter feed, along with a colorful metaphor from the expert witness presented by the state on the chances of Stein’s theories being borne out in reality:
Judge Paul S Diamond appeared skeptical that if he allowed recount to proceed that Green Party could accomplish anything meaningful in time
— Jeremy Roebuck (@jeremyrroebuck) December 9, 2016
Expert for pa. Secretary of State said that hacking state's voting machines is as likely as "androids from outer space living among us."
— Jeremy Roebuck (@jeremyrroebuck) December 9, 2016
Clearly, Diamond was in no hurry to adjudicate this dispute — and it’s tough to blame him, especially because it got tougher as the week went along. Pennsylvania does not fall within the 6th Circuit’s area of authority so its decisions technically wouldn’t set precedent for Diamond, but he had to be cognizant of their ruling on Michigan’s recount. They explicitly ruled on Tuesday that the state was the authority on qualifying for a recount, and that the federal court had to narrow its focus on whether the state rationally applied its criteria and processes. Given Pennsylvania’s (apparently) more piecemeal statutes, Diamond might have more room, but it’s almost impossible to argue that the state is irrationally making it more difficult for fringe candidates to hijack the election process with irrational and baseless claims.
So where does that leave Diamond? Well, that’s certainly worth mulling … or at least running out the clock. That’s almost certainly what this is. Tuesday is the safe-harbor deadline for the Electoral College, and their votes will be cast a week from Monday. Even if the safe-harbor date got ignored, a hand recount of the entire state would take longer than the seven days left before electors cast their votes. If Diamond rules against Stein, there won’t be any time left to argue in an appeal that their recount demand won’t interfere with Pennsylvania’s ability to participate in the Electoral College.
Scheduling the hearing today made it pretty clear that Diamond didn’t have much enthusiasm for intervention. Putting off the decision for another three days pretty much confirms it.
Also, Wisconsin has published its Day 9 cumulative recount totals, so this is a good time to update information from my earlier post. The state has now completed recounts in precincts that produced 83.43% of the Election Night vote total, and the net change in overall count is 1,254 ballots, 0.0511% of the 2.93 million votes cast in the presidential election. The net change in the lead for Donald Trump is to add three votes to the gap over Hillary Clinton, which stood at 22,617 after Election Night.
Most of the precincts left to report come from Dane, Waukesha, and Milwaukee counties. The city of Milwaukee has completed their recounts in the precincts, but count their absentee ballots centrally rather than locally (just as they did on Election Night). When those absentees are recounted and reported to the precincts, we’ll get accurate recount data from the city of Milwaukee. Some have made the mistake of adding in the current counts from those precincts and reporting that Hillary has dropped 27,000 votes (or a similar figure), but that data is incomplete and should be left out until the absentees are fully recounted and reported.
Update: The recount in Michigan wasn’t doing Stein or Hillary much good, as it turns out. The tally from the Secretary of State when the recount was suspended shows a shift of only 102 votes to Hillary after recounting roughly 40% of all precincts in the state. That barely dented Trump’s lead of 10,704 votes from Election Night. When Wisconsin wraps up their recount this weekend, it should be all over.