Recount Likely in PA Special Election Amid Allegations of Irregularities

Yesterday's much-publicized special election in Pennsylvania's 18th congressional district remains close, with the Democrat Conor Lamb leading Republican Rick Saccone by just 627 votes out of over 228,000 cast.  A recount is expected:

A source familiar with the next steps said Republican attorneys are planning to go to court Wednesday to demand the impounding of all ballots and machines that were used Tuesday night in all counties, as they plan for a possible recount.

There are allegations of irregularities with the voting machines and with absentee ballot processing:

Republicans plan to probe allegations that touch screen machines in Allegheny County were not properly calibrated and could have possibly registered votes for Lamb when the voter intended to vote for Saccone. 

These attorneys also plan to allege that GOP attorneys were blocked from observing absentee ballots by Allegheny County election supervisors.

There are also some concerns that the newly court-drawn map for the next election caused confusion. 

Another absentee ballot processing irregularity occurred in Washington County, which originally did not plan to count its 1,195 absentee ballots until today.  It planned to hold them in a secured location overnight before distributing them back out to the election precincts to be counted and reported back to the county election board.  Then, late last night, county officials changed their minds and decided to count them last night because of the close nature of the race.

We will update readers of this blog on the status of the recount, any investigations, and any litigation resulting from this race.

Control of Virginia House of Delegates Still Hangs in the Balance

After Virginia's state and local elections on November 7, there were four extremely close House of Delegates' races.  Here is what happened and the status of each of them:

• 28th District: Republican Bob Thomas led Democrat Joshua Cole by 82 votes after the election.  After a recount, Thomas' margin of victory narrowed to 73 votes.  However, Democratic voters in the district, through leading Democratic attorney Marc Elias, have filed suit regarding 147 ballots cast in the wrong district, asking for a new election.  A hearing is scheduled in this case on Friday, January 5.
• 40th District: On election night, Democrat Donte Tanner led incumbent Republican Tim Hugo by 68 votes.  During the canvass the next morning, 183 votes for Hugo were discovered that were not counted due to human error, giving Hugo a 115 vote lead.  After all votes were counted and a brief recount, Hugo won the seat by a 99-vote margin.
• 68th District: After the election, Democrat Dawn Adams led incumbent Republican G. Manoli Loupassi by 336 votes.  After a recount, the margin of Adams' victory increased to 347.
• 94th District: After Election Day, incumbent Republican David Yancey led Democrat Shelly Simonds by 12 votes, which was certified as a 10-vote lead.  
• After a recount, Simonds led by one vote, but Yancey challenged a ballot that was excluded, arguing that it should be counted.  The three-judge recount panel determined on December 20 that the ballot should be counted, resulting in a tied vote.  
• Virginia law provides for decision by lot in the event of a tie, and the Virginia State Board of Elections planned to conduct the drawing (by placing the names in two identical old film canisters and selecting one from a bowl) on December 27.  The drawing was delayed after Simonds filed a petition to reverse  the decision to count the disputed ballot.  
• On January 2, the Virginia SBE re-scheduled the drawing for tomorrow (Thursday, January 4) at 11:00 AM.
• This afternoon, the court denied Simonds' petition to have the ballot not counted, so the race remains tied.  
• After the ruling, Simonds pledged not to challenge the result of the random drawing, asking Yancey to pledge the same, which he refused.  After the refusal, Simonds also said she would keep her legal options open.

One House seat has not yet been decided (but could be tomorrow), and two are currently under litigation.  Delegates are scheduled to be sworn in for the new session on January 10.  Currently, the balance in the Virginia House is 50 Republicans to 49 Democrats, with the 94th District outstanding.  If the House is tied, the parties would have to broker a power-sharing agreement.  If the 94th is still unresolved on January 10, a Republican speaker and leadership would be elected based on the Republican majority, even if Simonds eventually wins, leading to a tied House.

What can we learn from this?  

• First, it is actually true that every vote counts.  
• Second, election integrity and smooth election administration matter.  Take the canvass in the 40th District.  Often canvasses are seemingly formulaic processes to verify the votes, but in the Hugo-Tanner race, the canvass uncovered two significant errors that completely changed the winner of the election.  These errors would not have been caught without a thorough process of double-checking the results and sharp-eyed election workers taking their jobs seriously.  
• Third, well-trainied election officials and proper election administration are key, especially in close elections.  
• Fourth, while extremely close elections and lengthy post-election procedures and litigation may seem rare, it is vital that parties and candidates be well-prepared for such events in advance of Election Day.  
• Fifth, attorneys have very important roles to play at every point of this process.  Attorneys resolved problems on Election Day, represented candidates and parties, observed the canvasses and recounts, and are litigating fast-moving cases raising novel issues of law.

We will continue to follow and report on the outcome of these races in Virginia.

ICYMI: America’s Most Incompetent or Corrupt Election Official?

A very famous election lawyer once told me: in elections it is “sometimes hard to tell where the incompetence ends and the fraud begins.”  In Florida, Broward County Election Official Brenda Snipes may be the poster child for this saying.  Earlier this year, Brenda Snipes confirmed the fact that non-citizens and ineligible felons were voting in Broward County.  Last year, Snipes “engaged in ongoing violations of Florida law governing the canvassing of vote-by-mail ballots [absentee ballots]. [T]ens of thousands of vote-by-mail ballots in Broward County are being opened by your staff: (1) before they have been canvassed by the county canvassing board; and (2) without providing the public the opportunity to review or file a protest against the canvass of a ballot believed to be legally deficient.”

Of course, Snipes also made several serious errors last year:

Before the election last year, her office mistakenly sent out some absentee ballots to voters that failed to list a popular medical marijuana measure that ultimately passed by wide margins, but not before the office was sued by the Florida chapter of the National Organization for the Reform of Marijuana Laws. In another case during the election, the office mailed out about 1,700 ballots that had the word “no” in Creole where it should have said “wi” for “yes.”

And now, Snipes is at it again:

The election supervisor in Florida’s second-most populous county broke the law by destroying ballots cast in last year’s congressional primary involving Rep. Debbie Wasserman Schultz, according to election-law experts across the political spectrum. The congresswoman's opponent has sued to get access to the ballots.

Snipes’ office, however, destroyed the paper ballots in question in October — in the middle of Canova’s lawsuit — but says it’s lawful because the office made high-quality electronic copies. Canova’s legal team found out after the fact last month.

Federal law is clear that such records have to be maintained for 22 months.  Snipes is using a legally dubious (at best) argument that Florida law supersedes federal law, but as another Florida election official states:

Of the state’s 67 county elections officials, Bay County Elections Supervisor Mark Andersen is recognized as one of the most high-tech. He said he relies on state law allowing him to destroy paper ballots after making high-quality images of the records. But, he says, there’s “no way” he would destroy ballots that are the subject of a lawsuit. Other elections supervisors said they, too, would never destroy the hard copy of ballots in a lawsuit.  [emphasis added].

Snipes is seemingly incompetent, trying to hide something, or both.  Regardless, she shows the need for poll watchers and transparency to oversee the voting process.   

ICYMI - Michigan Recount Revealed Serious Issues in Detroit

Jill Stein's unsuccessful effort to force a recount of Michigan's presidential election did reveal a serious problem in many precincts: a discrepancy between the number of voters who checked in and the number of ballots.  The problem was greatest in Wayne County, where Detroit is located, but also occurred in other counties.

Voting machines in more than one-third of all Detroit precincts registered more votes than they should have during last month’s presidential election, according to Wayne County records prepared at the request of The Detroit News. 

Detailed reports from the office of Wayne County Clerk Cathy Garrett show optical scanners at 248 of the city’s 662 precincts, or 37 percent, tabulated more ballots than the number of voters tallied by workers in the poll books. Voting irregularities in Detroit have spurred plans for an audit by Michigan Secretary of State Ruth Johnson’s office, Elections Director Chris Thomas said Monday. . . . 

Overall, state records show 10.6 percent of the precincts in the 22 counties that began the retabulation process couldn’t be recounted because of state law that bars recounts for unbalanced precincts or ones with broken seals. 

The problems were the worst in Detroit, where discrepancies meant officials couldn’t recount votes in 392 precincts, or nearly 60 percent. And two-thirds of those precincts had too many votes. 

The Detroit Free Press concluded that the discrepancies were likely due to human or machine error, not fraud:

In 248 precincts, there were a total of 782 more votes tabulated by voting machines than the number of voters listed as picking up ballots in the precincts’ poll books. That makes up just three-tenths of 1% of the total 248,211 votes that were logged in Detroit for the presidential election. That number was far too small to swing the statewide election results, even in this year’s especially tight race that saw a Republican win Michigan for the first time since George Bush in 1988. . . . 

The Free Press analysis found there were 248 precincts in Detroit where voting machines tabulated more Election Day votes than people who were counted as checking in to vote. The affected precincts represent 37% of the city's 662 precincts. 

Most of those overages were by small amounts — on average about 3 votes — with the largest being 12 votes in a single precinct. Those small numbers, which add up to 782 total spread out across more than 200 precincts, tend to point to human or machine malfunction as the culprit, rather than widespread fraud. 

In 158 precincts, the number of ballots tabulated by the optical-scanning voting machines was inexplicably less than the number of people who signed in to vote. At least 362 ballots were not counted in those precincts, even though the voters had been listed in poll books. 

Whether due to fraud or human/machine error, these discrepancies show that Michigan has a serious problem of election administration that it needs to address, whether through better procedures, better training, better equipment, or all of the above.  To their credit, Michigan's Secretary of State and local election officials are taking these problems seriously and seeking to identify the sources of the discrepancies and address them.

Michigan Recount Status - Tuesday Night (12/6)

There have been a lot of moving parts with the presidential election recount requested by Green Party Jill Stein in Michigan.  Here's an outline of recent events:

• Donald Trump won Michigan by 10,704 votes over Hillary Clinton.  Green Party candidate Jill Stein received 51,463 votes out of 4,799,284 total votes cast in the state.
• Michigan certified the election results November 28, triggering a 48-hour deadline for requesting a recount, and Stein petitioned for a recount on November 30.  Trump objected to the recount on December 1, and the Michigan Board of Canvassers met to consider the objection on Friday, December 2.
• The Michigan Board of Canvassers voted 2-2 along party lines, which meant there was no action on the objection and the recount would go forward.  Michigan has a two-business-day waiting period after a decision of the Board of Canvassers before a recount begins, which allows counties to prepare for the recount.  Counties expected to begin the recount on Tuesday or Wednesday of this week.
• Recounts are conducted at the county level, by hand, and likely must be completed by Tuesday, Dec. 13, though the deadline under federal law may be later.  County election officials began preparing as soon as Stein announced her plan for a recount and have scrambled to find space and personnel to conduct the recounts, and many counties are still struggling to find volunteers to recount ballots.
• After the Board of Canvassers' vote, Stein challenged the two-day waiting period in federal district court.  The judge held a hearing on Sunday, December 4, and issued an order in the early hours of Monday morning, requiring that counties begin the recount at noon on Monday.  
• Earlier today (Tuesday, December 6), a three-judge panel of the Michigan Court of Appeals held a hearing on Trump's suit to stop the recount, in which the Michigan Attorney General has intervened.  Shortly after the hearing ended, the Sixth Circuit Court of Appeals ruled in an appeal of the district court order:

In a 2-1 ruling, the federal appeals court upheld an order from U.S. District Court Judge Mark Goldsmith, who ruled that delaying the recount could jeopardize the state’s ability to complete it by a Dec. 13 deadline. 

But the panel also suggested that Goldsmith should reconsider his order if state courts ruled against Stein. 

“If, subsequently, the Michigan courts determine that plaintiffs’ recount is improper under Michigan state law for any reason, we expect the district court to entertain any properly filed motions to dissolve or modify its order in this case,” said the 6th Circuit Court opinion.

• This evening, the Michigan Court of Appeals ruled that the Board of Canvassers must reconsider and reject the recount petition:

A Michigan Court of Appeals panel has ordered the Board of State Canvassers to reconsider and reject a recount petition filed by Green Party candidate Jill Stein, ruling she did not meet the qualifications for the request because she has no chance at winning the presidential election. 

The unanimous ruling, released late Tuesday, could delegitimize the statewide hand recount already underway in several Michigan counties, but the court did not explicitly order that process to stop. Separately, a federal appeals court on Tuesday upheld an order forcing the state to start the recount Monday. 

The three-judge state panel ruled Stein does not meet the definition of an “aggrieved” party necessary for a proper recount petition.

So what happens now?:

• The Michigan Board of Canvassers is meeting at 9:30 on Wednesday morning.
• Michigan Attorney General Bill Schuette is planning to file a motion to dissolve the order requiring the recount to start Monday.
• Stein may appeal to the Michigan Supreme Court.  If she does, she is seeking to have the two Michigan Supreme Court Justices on Trump's list of potential Supreme Court nominees disqualified. 
• There are significant questions of federal-state law and jurisdiction at issue in the court cases:

Although a ruling on federal constitutional law takes precedence over a state court ruling, Schuette said his attorneys plan to aggressively argue to stop the recount at a hearing in the Michigan Court of Appeals today, because the issue at hand is one of state law, not federal law. If there are conflicting rulings from state and federal court, the case could ultimately end up in front of the U.S. Supreme Court, he said.

"Michigan law prevails," Schuette said. "You can't make up -- like the federal judge is attempting to do -- a constitutional right to a recount."

The attorney general said state law is clear that Stein can't ask for a recount because she only received just over 1% of the vote. Therefore, a recount can't overturn the result for Stein and she is not an "aggrieved" party under state law, Schuette said. 

The Michigan Secretary of State is posting recount information here.

Pennsylvania Recount Status

There has been a lot of news and misinformation surrounding Green Party presidential candidate Jill Stein's efforts for a statewide recount in Pennsylvania.  Here are the facts:

• Trump won the state by 71,294 votes.
• A candidate (who has not loss by less than .5%) requesting a statewide recount in PA (technically, contesting the election) must state legitimate claims of fraud or illegality that would definitely change the outcome, so it is unlikely that the statewide recount effort in PA will be successful.
• A hearing is scheduled next Monday (12/5) in Stein’slawsuit to obtain a court-ordered, statewide recount.  Stein is requesting a statewide hand recount and forensic analyses of electronic machines to determine whether malware was installed (despite no evidence of fraud or hacking).
• Green Party-backed voters are seeking precinct-level recounts.  
• Allegheny County (Pittsburgh area) scheduled a recount on December 5 of 52 precincts.  
• A judge denied requests to recount votes in 78 counties in Montgomery County (Philadelphia suburbs).  
• A recount yesterday in six Lehigh County precincts added 3 additional votes for Hillary Clinton.
• The deadline to request a recount has passed in many counties.

While it is unlikely that Stein will be successful in obtaining a statewide recount, some precincts in Pennsylvania will be recounting votes cast in those precincts.  The news regarding the recount efforts is changing rapidly; stay tuned for more information.

Jill Stein Requests $5 Million Recount in Michigan

As expected, today Green Party presidential candidate Jill Stein officially petitioned for a recount of Michigan's presidential election results.  The recount in Michigan will be conducted by hand at the county level, and local election officials are scrambling to acquire the space and personnel necessary, all at great expense to Michigan taxpayers:

Green Party candidate Jill Stein’s quest to recount Michigan’s 4.8 million ballots in an unprecedented autopsy of a presidential election could cost taxpayers more than $4 million. 

Stein formally requested Wednesday a hand recount of the state’s presidential election, a labor-intensive undertaking that is expected to begin Friday morning and could result in marathon counting sessions until the Dec. 13 deadline. 

Republican President-elect Donald Trump won by 10,704 votes over Democrat Hillary Clinton, getting 47.5 percent of the vote to the former secretary of state’s 47.27 percent. Stein received 51,463 votes or about 1.1 percent. 

The Green Party nominee’s attorneys left a $973,250 check at the state Bureau of Elections to cover Stein’s legally required fees for seeking a recount of 6,300 precincts.

While the total cost of the recount is not yet known, it is estimated to be at least $3 million and as much as $12 million:

Secretary of State Ruth Johnson said Wednesday the recount cost could total $5 million, leaving the state and county governments on the hook for the remaining $4 million. 

Michigan Republican Party Chairwoman Ronna Romney McDaniel blasted the request as a “reckless attempt to undermine the will” of Michigan’s voters. She noted Stein and her lawyer, Mark Brewer, have provided no evidence of vote fraud. 

“Jill Stein made her 1 percent temper tantrum official and will waste millions of Michigan taxpayers’ dollars, and has acknowledged that the recount will not change anything regarding the presidential election,” McDaniel said. 

Cost estimates for the recount have varied wildly between Johnson’s estimate of up to $3 million to Michigan GOP attorney Eric Doster’s estimate of $12 million, the cost of a full statewide election.

While recounts are useful and necessary tools for checking the accuracy of election results in close races, where no fraud or irregularities are suspected (as in North Carolina's gubernatorial race recount where irregularities have been found or are suspected in several counties), they can be misused as a political and publicity tool at the expense of taxpayers' funds and local election officials' time.  Such misuse is, unfortunately, the case with the Michigan recount.

RNLA Calls Upon Clinton Campaign to Condemn and Stop Recounts

RNLA officially called upon the Clinton campaign to condemn plans by the Green Party to hold recounts of the presidential election results in several states:

The Republican National Lawyers Association (RNLA) calls upon the campaign of Democratic presidential candidate Hillary Clinton to stand down and condemn the recount effort in Wisconsin and possibly other states. We are extremely disappointed by the change of heart of Secretary Clinton in deciding to participate. This is an unprecedented effort to divide our country.  

RNLA President Larry Levy said: “The alleged concerns that the recount is to ensure every vote is properly counted is ludicrous. If that were true, why aren’t they seeking recounts in every state or at least include New Hampshire where Secretary Clinton won by a scant 2,736 votes or other states with narrow Democrat wins? This effort diverts attention from the critical work of President-elect Trump and his team to form a new Administration and to be prepared to lead America forward on day one.”  

The recount is pointless, a waste of resources, a squandering of taxpayer funds, and flies in the face of the long tradition of accepting results. Do not take our word for it. Look at the past statements of Secretary Clinton and her lawyer. Further, RNLA agrees with the Obama Administration in its opposition to the recount.  

1. Previously, Secretary Hillary Clinton called the very thought of not accepting the election results “horrifying.” . . . 2. To be clear, there is no doubt about the election results. This is why the Clinton campaign decided previously not to pursue the recount. . . . 3. The Obama Administration also agrees that there is no basis for a recount . . . .

Whatever the fundraising and publicity goals of the Green Party are, Secretary Clinton and her campaign should not approve them.  As her running mate Sen. Kaine said the day after the election, "Nobody — nobody had to wonder about Hillary Clinton, whether she would accept an outcome of an election in our beautiful democracy."

Stein's Recounts Are Not About the Election Results

The current recounts of the presidential election requested or planned by Dr. Jill Stein of the Green Party are not about ensuring the integrity of the election outcomes:

RNLA President Larry Levy said: “The cynical and false narrative being pushed by Jill Stein and the Green Party that they are trying to ensure all votes were properly counted is nothing more than an effort to undermine our democracy and proud history of peaceful administration change through contested elections. Ms. Stein doesn’t concern herself with any contests won by Secretary Clinton, including the razor thin margin she enjoyed in New Hampshire, rather she is attempting to disrupt the Electoral College vote for Donald J. Trump in an un-American and vulgar attempt to delegitimize the next President chosen by the American people. And Secretary Clinton’s support for this effort is a disgrace that exposes the hypocrisy she practices.  

“We cannot and will not stand silent in the face of this malicious effort to undermine our democracy. Join the Republican National Lawyers Association and all people of good will in fighting this insidious attack and show the world that democratic elections still count in America.”  

RNLA Board of Governors Member John Ryder further explained: “A recount does not shift more than a few hundred votes unless there are allegations of irregularities or vote fraud. There are no such allegations in this case.”

Dr. Stein has said in multiple interviews that she is not attempting to change the outcome of the election through her recount requests.  But she, with the support of Hillary Clinton, is putting states and election officials through an expensive process in a fool's errand to accomplish a victory through the press that liberals could not accomplish at the polls.