Kick me if you like, but I’m glad the courts have put a stop to the Michigan recount. My relief has nothing to do with President-elect Donald Trump, and everything to do with the integrity of the voting process. And before you object that getting the count absolutely right is also vital to integrity, let’s go over some ground.
In this year’s presidential contest, Michigan was the state that took longest to call. Once the count was final, Trump beat Hillary Clinton by some two-tenths of a percentage point — a smidgen over 10,000 votes of the more than 4.5 million cast. When Green Party candidate Jill Stein began her quixotic campaign for recounts in a handful of states, Michigan was an obvious one to add to the tiny list.
But earlier this week a panel of the Michigan court of appeals held that Stein lacked standing to seek a fresh tabulation. She would not, after all, be the beneficiary. In light of that ruling, a federal judge on Wednesday dissolved his earlier recount order, an act that in practical if not legal terms puts an end to the whole thing.
Which brings us back to getting the count absolutely right.
News flash: can’t be done. Counting millions of ballots, we can’t ever be sure we’ve got it right.
Just about a year ago I wrote a column on the 15th anniversary of Bush v. Gore, the U.S. Supreme Court’s controversial decision in December 2000 that ended the third Florida recount and therefore that year’s presidential election. The majority opinion in the case, as I noted, was terribly unpersuasive, and Florida should have been left to run its own election. On the other hand, as I further explained, vote recounts are harder to defend than we tend to think, and for one simple reason: There is no logical stopping place.
Suppose an election with two candidates. Let’s call them Eastside and Westside. Eastside is declared the winner on election night. But the margin is so narrow that Westside demands that the ballots be counted again. When the tabulation is complete, Westside is the winner. Is the contest over? Says who?
Having once conceded that we may have gotten it wrong on election night, we are in a weak position to assert that we are sure that this time we have it right. When Eastside demands yet another count, we have no obvious ground to refuse. And if Eastside wins this time, making two out of three, should that be the end of the matter? That hardly seems fair. Surely Westside should have the opportunity to stage a Cubs-style comeback. And so on ad infinitum.
Of course we can simply draw an arbitrary line. One recount only, say. Or two at the most. Many states have laws providing for a precise number (usually one). But the arbitrary line is still arbitrary. We still have no way to know for sure that we have the numbers right. Most of us, I suspect, would conclude that the optimum number of recounts is whatever number it takes for our candidate to win. At that point, the counting should stop.
It’s no answer to say that the whole mess could be avoided were we to use only digital voting machines. For better or worse, we are at a point where nobody trusts their accuracy. The whole country seems to think a digital election could easily be hacked — whether or not it’s true. And without the physical assurance of paper ballots, we can’t point to the hard evidence that voter preferences have been properly recorded. On the other hand, with paper ballots, we tend to get different numbers with every count. Blame differing standards, human vicissitudes, random chance. Whatever the reason, when an election is so close that the margin of victory is smaller than the margin of error, we can’t ever be sure the tally is right.
No way out but to respect what happens on election night.
Don’t get me wrong. I am not saying recounts should never be performed. There are situations in which they are mandatory. Consider West Virginia, where in the 1946 election, police drove voters from poll to poll, enabling them to cast multiple ballots. Colorable evidence of such widespread fraud is a good reason not only for a recount but possibly for a new election. Similarly, should we discover systematic breakdowns in the tabulating process, such as large numbers of uncounted ballots, we should count again. And we should certainly take action when there are plausible allegations of discrimination and intimidation at the polls — events all too common in our history. But there, too, the right remedy would seem to be not a recount but a new election. (And prosecution of the offenders.)
No doubt there are other situations, too, where we would all agree that a recount is warranted. What’s vital is that we choose only rare instances that go to the integrity of the democratic process itself. The worst reason to count again is that the election is close and our side lost.
Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
- The key word is “widespread.” In in the face of testimony about illegal voting, the Massachusetts Senate refused to recount the ballots in the election of one of its members. Why? Because the testimony, even if true, would not have involved enough ballots to swing the election.
- Or should we? In confronted with evidence that more ballots were counted than had been distributed, a New York judge decided not to order a recount. The proper procedure, he said, would be to bring a lawsuit asking the court to determine who had actually won the election!
This article was written by Stephen L. Carter from Bloomberg and was legally licensed through the NewsCred publisher network.