More than a decade after the 2000 presidential election debacle in Florida, the litigation following the 2016 presidential election demonstrated that our electoral system is still not equipped to confront challenges and uncertainties. Five states saw petitions for recounts, but only one state (Wisconsin) conducted a full recount. In between Election Day and Inauguration Day, what could have been a smooth series of recounts to verify our electoral system instead devolved into breathless headlines and many rounds of uncertain litigation.
After the dust settled in Wisconsin, the sole state to conduct the requested recount, the fact that the recount was not reasonably likely to overturn the result and the fact that the recount was requested by Green Party candidate Jill Stein rather than one of the two major party campaigns has led the state to try to change the process. The process does need reform, but unfortunately the bill being considered in Wisconsin goes in the wrong direction.
The Need for Orderly Recounts
Election administration is an incredibly complex, decentralized process in the United States. Different machines must all work correctly, thousands of poll workers must be trained, and millions of voters cast ballots, in person and through the mail. Of course, sometimes things go wrong.
Election administrators do everything they can to minimize errors before the election, but verification of the results after the election still serves as a critical check. A post-election verification process is essential for bolstering confidence in the legitimate outcome. This is especially important in the presidential election, given the unique prominence and importance of that office.
The best way to verify election results after an election is through the use of risk-limiting post-election audits. With such audits, every election can end with the double-checking of a reasonable number of ballots to ensure that errors are too small to change the outcome. Wisconsin does already conduct post-election audits, but it limits the check to exactly 100 precincts, rather than increasing the number of ballots checked in very close elections, as recommended by risk-limiting audits. This makes Wisconsin’s auditing system inadequate for close, important contests, where they are most needed.
In the absence of rigorous post-election auditing, recounts fill in the gap. Such recounts need not be likely to, or even intended to, change the outcome of the election. They can serve to identify weak points in election administration. As clearly stated by the Stein campaign, the Wisconsin recount was “never about changing the outcome; it was about validating the vote and restoring confidence in our voting system.” The Wisconsin recount did identify “more than 11,000 errors in how ballots were counted on election night.” Stein’s campaign paid upfront for the entirety of the recount’s cost, approximately $2 million.
The Wisconsin Bill
Jill Stein filed her petition for a recount on Nov. 25th. By Dec. 12th, the state of Wisconsin had completed the recount. In between, headlines of a “political horror show” dominated the media. This stemmed directly from the fact that Wisconsin’s current recount laws – and those throughout the country – are insufficient, too vague and convoluted.
Wisconsin’s legislators want to change the process. A good way for them to do that would be to adopt risk-limiting audits or to require election administrators to have a recount plan, including a price tag for a candidate’s request, before every election. Either of those approaches would make the process orderly and ensure elections could be verified.
Instead, Wisconsin is considering a bill that would have simply denied the Stein campaign’s request for a recount. This bill – Senate Bill 102 and Assembly Bill 153 – would limit recount requests to candidates who have lost by 1% or less. Any candidates who are more than 1% behind the initially declared winner would be barred from initiating any recounts – and if a candidate has won the election by more, no candidate or voter could request a recount at all.
This idea is not new – several states use the same or a similar approach – but this is not the right way forward. FairVote’s data does in fact show that statewide general election recounts have only been successful in overturning the results of an election in cases where the initial difference in votes was under 0.10%, and that the largest change in the vote tally in an election where the recount changed the outcome was about 0.12%. But recounts do more than just change the winner of a particular election. Essentially, Wisconsin legislators are responding to the perceived inadequacy of their post-election verification system by cutting off one way that errors can be found – brushing the problem under the rug.