Could Hillary Clinton still win the election? It’s unlikely, but…
Will a vote recount change the outcome of the 2016 presidential election?
Vote recounts in three swing states where President-Elect Donald Trump won by a small margin—Wisconsin, Michigan, and Pennsylvania—are being pursued due to a mad fundraising drive over the Thanksgiving holiday by Green Party presidential candidate Jill Stein.
In her petition for a recount in Wisconsin, Stein listed a number of concerns as justification: that Russia may have hacked the U.S. election; the increased use of absentee ballots; and voting irregularities linked to the use of electronic voting machines. Democratic nominee Hillary Clinton‘s campaign gave its tepid support to the recount effort on Saturday—but stressed it didn’t expect it to change the election’s outcome.
Clinton Legal Counsel Mark Erik Elias wrote on Medium:
“We do so fully aware that the number of votes separating Donald Trump and Hillary Clinton in the closest of these states—Michigan—well exceeds the largest margin ever overcome in a recount. But regardless of the potential to change the outcome in any of the states, we feel it is important, on principle, to ensure our campaign is legally represented in any court proceedings and represented on the ground in order to monitor the recount process itself.”
The vote recount that Elias is referring to is Florida’s 2000 presidential election recount, where Republican George W. Bush originally led Democratic challenger Al Gore by less than 2,000 votes. A state-wide recount ultimately cut 1,247 votes off Bush’s lead, but it was all for naught: Bush won Florida by a razor-thin 537 votes.
So, if past is precedent, Clinton’s chances don’t look good. Trump won by some 22,177 votes in Wisconsin, 10,704 votes in Michigan, and 68,171 votes in Pennsylvania.
But Stein and various cybersecurity experts hint that something more nefarious may be at works. Stein included in her petition a five-page affidavit from J. Alex Halderman, the director of the University of Michigan’s Center for Computer Security and Society, who believes hackers could have altered the election.
“One explanation for the results of the 2016 presidential election is that cyberattacks influenced the result,” wrote Halderman, who also says such a plot is unlikely.
While U.S. intelligence agencies say they believe Russia hacked and released stolen emails from the Democratic National Committee hack and Clinton campaign chair John Podesta, Clinton’s legal team admitted that there was still no actionable evidence that Russia attempted to alter the outcome on Election Day.
Some states noticed scanning or probing of their voting systems by Russian-owned servers as far back as October, according to a joint statement by the Department of Homeland Security and Office of the Director of National Intelligence. But DHS and DNI maintain that it would be “extremely difficult” for anyone—including nation-state actors—to alter actual ballot counts or election results through a cyberattack.
Regardless, a very long and tricky road still lies ahead for the vote recount itself. Each state has its own laws and procedures for a vote recount that may present further obstacles. Here’s a breakdown of what to expect for each state.
Of the three states, Wisconsin is the only one that has formally agreed to a recount, which is expected to begin on Thursday, Dec. 1, according to the Wisconsin Elections Commission. But Wisconsin on Monday rejected a request from Stein to require all counties to count the votes by hand; counties could choose instead to use a machine. Stein stated in response that she will sue for a hand count.
Why the need to count by hand? Wisconsin’s optical scan electronic voting machines have emerged as a major suspect. Stein’s petition pointed out that Clinton fared better in counties where paper ballots were used. Wisconsin election officials on Saturday still maintained that there’s no evidence of hacking.
According to the Milwaukee Journal Sentinel, counties can currently choose to perform their vote recounts either by hand or machine:
“Most machines in Wisconsin are optical readers. Voters fill out a ballot and feed it into the machine, which then electronically records the vote. In a hand recount, clerks would individually tally those ballots. In a machine recount, they would feed the ballots back through the machines,though they would also run a number of other checks such as reconciling the votes and signed names on poll lists.”
The sheer amount of time required for a state-wide recount by hand raised alarm bells among election officials. Election workers will be forced to work nights and weekends to meet the state’s deadline of Dec. 13. The last time the state performed a hand recount was in 2011—and it took more than a month.
This time, Wisconsin has 10 days.
Wisconsin’s election officials were worried that if the state doesn’t meet the Dec. 13 deadline, its electoral college votes could be at stake. But even if Wisconsin misses the Dec. 19 meeting of the Electoral College, its electors could still submit their votes to Congress, which will count the Electoral College votes on Jan. 6, 2017.
On Monday, Michigan officials certified Trump the winner of the state’s election and its 16 electoral votes. Stein has until Wednesday to request a recount, which she says she plans to do.
President-Elect Trump has seven days to file a written objection to the recount, if Stein files on Wednesday, Michigan Secretary of State spokesman Fred Woodhams told the Detroit Free Press. But it would be up to Michigan’s Board of State Canvassers to ultimately decide what to do next.
Even if Clinton were able to win Michigan and Wisconsin—again, that’s highly unlikely—she would still lose the Electoral College 258-280. For a vote recount to result in a Clinton win, she would have to win Pennsylvania’s 20 electoral votes. But the path to winning Pennsylvania via a recount seems the most unlikely of them all.
A lawyer from Stein’s campaign on Monday told the Philadelphia Inquirer that they intend to file a lawsuit in Commonwealth Court asking for a statewide recount of the Nov 8. presidential election. Stein’s suit would have to prove that election fraud was likely—a claim that even the Democratic Secretary of State Pedro Cortes has dismissed.
To make things even trickier, it’s unclear whether the courts in Pennsylvania even have the authority to order a statewide recount.; both Cortes and a Republican Party attorney told the Associated Press that the courts have no such power.
But if five of Pennsylvania’s electors—the people who actually cast ballots in the Electoral College—have reason to believe someone tampered with the election, they could also decide to contest the election results in court, according to the Congressional Research Service (CRS).
Even if vote recounts in all three states fail, and the Electoral College votes in Trump’s favor on Dec. 19, there’s one last remaining avenue to challenge the 2016 presidential election result. But don’t get your hopes up, Clinton fans—because it’s up to Congress.
Following each presidential election, Congress meets in January to count the Electoral College votes. According to CRS, a little-known law called the Electoral Count Act of 1887 lets Congress vote on whether to consider electoral votes from a particular state if there’s compelling evidence of voting irregularities. One U.S. House representative and one U.S. senator would have to present evidence that election irregularities occurred. The House and Senate would then vote on whether to consider the state’s electoral votes.
Democrats in Congress actually attempted such a move with Ohio back in January 2005, following Democratic challenger John Kerry‘s loss to incumbent President George W. Bush in the 2004 election. Former Ohio Rep. Stephanie Tubbs Jones and California Sen. Barbara Boxer filed an objection that listed among its concerns voter suppression efforts and mysterious “vote glitches” in Ohio districts with primarily African-American and Democratic voters.
The effort was ultimately futile, according to the New York Times. In the end, the House voted 267 to 31 against the challenge; the Senate voted 74 to 1.
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