Stein Recount Scores Legal Wins

Stein efforts win steps towards election integrity in three states

By David Schwab, Green Party of Wisconsin

After election integrity experts flagged worrying signs in the 2016 election results, Green Party presidential nominee Jill Stein answered the call to file a recount in three states where the largest questions loomed: Michigan, Pennsylvania, and Wisconsin. Even after the recount effort was beaten back by a combination of legal maneuvering and bureaucratic red tape, Stein doggedly continued the fight for election integrity in the courts in Wisconsin and Pennsylvania. In the years that followed, her

Perhaps the state where Dr. Stein’s recount effort has made the biggest impact is Pennsylvania. In 2016, the recount effort was frustrated by the state’s antiquated and onerous bureaucratic process for requesting a statewide recount. Even if they had managed to file for a recount, most of the state was using paperless direct-recording electronic voting machines that made recounts effectively impossible. Stein’s legal team took aim at the entire process in Pennsylvania, arguing that the existing election law regime made it impossible to guarantee election integrity.

In 2018, Stein settled her recount lawsuit with the state of Pennsylvania for a guarantee that the state would replace all paperless voting machines with systems using voter-verifiable paper ballots by 2020, and in 2022 would introduce post-election risk-limiting audits to verify the vote before results are certified. Stein took Pennsylvania back to court to demand decertification of ES&S Expressvote XL ballot-marking devices that experts warned were flawed, and while the court ultimately ruled against decertification, the lawsuit played a role in dissuading several counties from purchasing the machines.

The recount effort in Michigan, which was quickly halted by a Republican-appointed judge’s ruling that Stein lacked standing to compel a recount, exposed glaring problems with Michigan’s elections, including an improbable 84,000 undervotes in the presidential race, faulty machines concentrated in urban precincts that broke down in large numbers, and a provision in state law preventing the recounting of precincts where problems arose. In Detroit, more than 80 ballot scanners broke down on election day in 2016, and a whopping 60% of precincts were ruled ineligible for recounting due to problems with the initial count. While the recount was quickly halted, the national attention on Michigan’s failings galvanized the state to replace many of its faulty voting machines shortly after the 2016 election.

In Wisconsin, Stein did manage to get a statewide recount in 2016. However, only about half of Wisconsin counties performed a full hand recount of the kind needed to truly verify the results, while others simply recounted ballots with the same machines used to count them in the first place. This category included counties like Milwaukee that would have been obvious targets for any foul play to suppress the vote. The recount led directly to the state’s decertification of Optech Eagle voting machines that were observed miscounting ballots during the recount in Racine County. The recount also produced a mountain of data, which was analyzed by academics from MIT, Harvard, and the University of Wisconsin, and put to use by election integrity advocates and the Wisconsin Elections Commission to improve practices that had led to one out of every 170 votes originally being miscounted.

After the Wisconsin recount, Stein kept fighting in court for nearly four years to exercise her right under Wisconsin law to inspect voting machine source code. While the statute clearly stated that a candidate who files for a recount has the right to inspect voting machine source code, voting machine manufacturers Dominion and ES&S had attempted to impose a gag rule to prevent any public disclosure of the eventual findings. After two victories in court for Stein, the Wisconsin Supreme Court declined to take up the issue by its September 2020 deadline.

While celebrating the legal win, Stein bemoaned the voting machine vendors’ efforts to tie the case up in court for almost four years, preventing the Stein recount campaign from examining the voting machines before the 2020 election. “It’s outrageous that voting machine vendors that profit from government contracts have been able to use those profits to buy political influence and prevent scrutiny of their machines through legal machinations,” said Stein.

Jill Stein is currently in ongoing talks with her designated expert J. Alex Halderman regarding plans to inspect the source code that runs many voting machines used in Wisconsin and across the United States.