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If the 2020 presidential election hinges on recounts in the closest battleground states, there could be a crisis even greater than the 2000 election where the U.S. Supreme Court ended a Florida recount in its infamous Bush v. Gore ruling.
That's because the laws and timetables governing recounts in many swing states differ widely and aren't necessarily geared toward transparent granular counting -- and that's apart from President Trump's habit of attacking election outcomes he doesn't like by claiming they were stolen.
"I see what the states have put out there. They have not proven realistic," said Matthew Weil, senior associate director of the Democracy Project at the Bipartisan Policy Center, speaking of the policies and legal landscape that unfold after election night. The BPC is soon expected to issue a report on the topic. "It would be very helpful to really look at what a realistic and rational policy would be, and we can work toward that goal."
Should presidential recounts occur, it appears that history will not repeat what happened in 2016 -- when courts shut down two of the three recounts filed by the Green Party: in Michigan and Pennsylvania but not Wisconsin. But the chances of voters seeing a convincing process may prove as frustrating as 2016.
"By conventional standards, the 2016 presidential recount was close, but not by recount standards," said Chris Sautter, a nationally known lawyer specializing in post-Election Day procedures. "Nonetheless, a truly accurate recount to fully verify the results was not possible in any of the three states because laws in those states didn't permit meaningful recounts, and because even had the laws permitted proper recounts, most of Pennsylvania and a few counties in Wisconsin did not use election equipment that produced paper records of each vote."
In 2016, three purple states tipped the Electoral College and made Trump president. Millions of Americans were stunned. The Green Party's presidential nominee, Jill Stein, stepped into the "what happened?" void, raising $7.3 million and filing for recounts in the states with the three closest margins: Michigan, Wisconsin and Pennsylvania.
The recounts accomplished little of what recounts are supposed to do -- validate or update the earlier results. They were blocked in Michigan, stopped in Pennsylvania after barely beginning, and, in Wisconsin, where they were completed after revealing inconsistencies in some vote-counting machinery, Trump emerged with several hundred more votes. Instead of resolving ambiguities and bringing legitimacy to the results, the narrative was dogged by suspicions of hacked machinery, slash-and-burn political rhetoric, contentious court battles and rulings, resistance to re-examining count votes by some local officials and wide media ridicule. These factors did little to satisfy Americans seeking answers.
Since 2016, Michigan, Pennsylvania and Wisconsin have updated some laws or counting protocols in response to the recount, but not all of those revisions are intended to open up the process. Looking more widely, most possible 2020 swing states each have different post-Election Day rules, counting timetables and deadlines, some of which are hard to meet without squeezing in a thorough recount.
With the possible exception of Florida, most of the several dozen recount-related bills now in legislatures were not from likely presidential battleground states, heading toward passage, nor involved big changes. Or, as in Arizona, there's a proposed bill to make it more expensive to file for a recount if it's not automatic -- a deterrent to recounting.
Many voters do not realize that elections don't end on election night, where the reported totals are unofficial and incomplete. After all of the ballots are collected and machinery is packed up, a process called the canvass begins. This involves elected officials and civil servants, typically at the county level, compiling and reconciling the totals from their various voting options (early, at precincts, etc.) and still-arriving mailed-in votes. This process typically concludes seven or 10 days later with local certification of winners. State certification follows soon afterward.
If the top contenders are less than 1 percent apart (this slightly varies state-by-state), a recount will be triggered. Depending on the margins, the government or candidates will pay for this. Recounts also follow differing rules depending on the state. Some, like in Florida, only count problematic ballots -- with no votes or too many votes. (Election audits are generally not part of this phase, but occur after the election is officially over.)
To choose the president, states have to finish this process before the Electoral College meets about six weeks later. But post-election timetables vary. In Michigan, the process can take no more than 40 days. In Ohio, it's 31 days. In Wisconsin, 24 days. In Nevada and Pennsylvania, it's 21 days. In Florida, it's 14 days -- although there is legislation to add five days. These timelines were set years ago, before large numbers of voters started voting by mail, which takes time to process, and Congress created the provisional ballot safeguard (for people not on voter lists), which also must be verified before counting.
What can follow close contests can appear confusing and not inspire confidence. Before three simultaneous statewide recounts were triggered in Florida last fall, including for U.S. senator and for governor, the results kept changing as mail-in ballots came in. In Broward County, Republicans rallied outside of county offices and loudly accused the election workers inside of rigging the results. In Broward County, Palm Beach County and elsewhere, officials didn't finish in time, which meant under law that the earlier unofficial results stood. Michigan has a similar law on the books.
"It's very weird, from a government-administration perspective, to be putting out unofficial totals, and then people are seeing them shift," Weil said. "We now see a lot of concern -- i.e., 'Is something going on if these numbers are shifting?' Obviously, that's a part of the process, but I do think we need to evaluate some of those reporting policies."
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