By Wendy Underhill
We’ve all heard that Green Party presidential candidate Jill Stein has asked for a recount of presidential votes cast in Wisconsin, and that Democratic Party candidate Hillary Clinton joined the request.
Soon we will know whether similar recount petitions will be filed in Michigan and Pennsylvania as well. That’s political news, certainly, but it may also be the backdrop for bills that lawmakers may consider when 2017 sessions begin.
J. Alex Halderman, the University of Michigan computer scientist who, along with others, asked the campaigns to request recounts, was pretty clear he didn’t expect the outcomes in those three states to change.
Instead, he says “Examining the physical evidence in these states — even if it finds nothing amiss — will help allay doubt and give voters justified confidence that the results are accurate.” Massachusetts Institute of Technology professor Charles Stewart III followed up by saying that “conspiratorial fears” drowned out the broader context behind the recount requests: The belief that all elections should be auditable.
What does that mean? It means that some states require post-election audits, and others don’t.
In most cases, these laws call for a standard review of the results from a few precincts or a few voting machines after each and every election. You could think of a post-election audit as a mini-recount, or like randomly pulling over truckers to ensure their rigs are up to snuff. Most truckers don’t get pulled over, but the very act of random checks is intended to make all truckers more cautious to stay within the law. It’s the deterrence factor.
Other states have full-blown recount laws. Forty-three states and the District of Columbia permit a losing candidate, a voter, a group of voters, or other concerned parties to petition for a recount. Twenty states have a “trigger” for an automatic recount, often set when the difference between the top two candidates is 0.25 percent or less, and sometimes only in the case of a tie vote. (FYI: the margin between Trump and Clinton was 1.0 percent in Wisconsin, 0.3 percent in Michigan and 1.2 percent in Pennsylvania—none close enough to expect a change in the outcome.)
Both audits and recounts are made easier or harder, depending on what election technology is in place—something else that lawmakers can debate.
If that’s not enough for a legislative to-do list, lawmakers also are responsible for how contested elections are handled. In the case of a presidential election, the timeline is particularly tight and non-negotiable, ending this year when the Electoral College meets on Dec. 19. For suggestions on how states might shore up their post-election dispute resolution practices, see the American Law Institute’s work on Procedures for the Resolution of a Disputed Presidential Election. The procedures start on page 71 of a longer document.
Still not enough? Try these questions with your state election director or local election administrator: Does your state’s law call for ballot reconciliation (a requirement that every ballot distributed must be accounted for)? Do statutes explicitly allow vote counting and tabulation to be viewed by the public? Does the election timeline, including when “unofficial” results are replaced by official results, provide an opportunity for review?
Wendy Underhill directs NCSL’s Elections and Redistricting program.