How Jill Stein’s Failed Recounts Succeeded — And Why That’s Troubling
I’m sitting on a bench outside of Courtroom 6-B in James A. Byrne Federal Court, in Philadelphia, when I see Jeff Cutler’s t-shirt. A Clinton supporter and I are speaking about the fate of Jill Stein’s statewide recount, the reason we’re all here on a Friday afternoon, and Jeff, who’s in his 50s, balding, and potbellied, is standing to the side, clutching a puffy blue jacket and a black canvas tote bag. We have 30 minutes until the hearing begins, and I can guess whose side Jeff is on: A navy suit jacket covers the t-shirt, which features four different typefaces and three different colors. It reads, “Obamacare violates the 1st, 5th, and 14th amendments & previous decisions of the Supreme Court.” “14th” is crossed out with a black slash.
Jeff inches closer to us and interjects. “I know first-hand about election fraud,” he says. I ask him how so. “I’m an elected official, and now my city council is trying to remove me from office.” He hands me a business card with his job title on one side (Tax Collector) and a picture of the shirt he’s wearing and his Court of Appeals case number on the other. I nod my head. “I won with a vote and a marble, too,” he adds. “That’s how they break ties in Lancaster, with a marble.”
“It looks like you won the election, though,” I say, holding up the card. “So how was it voter fraud?”
By way of an answer, he tells me that Obamacare establishes a state-sponsored religion and that, in order to enforce the law, a SWAT team recently raided an Amish man’s home because he refused to pasteurize his milk. He hands me another business card: Jeffrey Cutler / For State Senator / Write-In Vote. Because his case and Stein’s are related, he says, he’s petitioned the court to allow him to speak today. He wants at least five minutes. I’m going to ask again how the two cases are related, but the court is now open, and we shuffle toward the metal detector.
Inside, Ilaan Maazel, Stein’s lawyer, makes his case. Throughout election day, irregularities abounded. For example, in one county, there were 4,087 “no-votes,” meaning that one percent of voters traveled to the polling place, waited in line, signed the registration book, and then decided not to vote for any candidate in any race. In order to request a recount, three voters from each precinct must sign a petition and verify it by affidavit in front of a notary. For a full statewide recount to occur, 27,474 voters evenly spread throughout the state’s 9,158 precincts would have to file before each Board of Election’s deadlines, which are not posted, at a total cost of at least $457,900. On top of that, the state’s electronic voting machines leave no paper trailand have been decommissioned by other states because of their security vulnerabilities. “Pennsylvania’s voting system,” Maazel argues, “is a national disgrace.”
As Kenneth Jole, the state’s attorney, prepares to give his opening remarks, I wonder how he’ll justify such onerous requirements for a recount. The one in Wisconsin is nearly over and hasn’t uncovered any fraud, and the one in Michigan has been halted, so I know that nothing will change the outcome. But, isn’t the assurance of election integrity as important as the results? While I ponder that, I see Jeff Cutler whispering to the bailiff and pointing to the microphone. Both of us, it seems, are demanding accountability.
Jole offers his rebuttal primarily through his expert witness, Dr. Michael Shamos, who argues that electronic voting machines are perfectly safe. He says there’s as much evidence of hacking as there is of aliens from space living among us as androids, a point that the Stein team reluctantly admits. “So tell me,” the judge says to Stein’s attorney after Shamos’ testimony, “if I credit the state’s expert, and thereby discredit yours, do you still have a case?” Maazel prevaricates, and the judge sighs. “You’re asking me to delay certifying the state vote, which, under federal law, could potentially disenfranchise six million people. So tell me this: How long would a recount take?”
At noon the following day, December 10th, I walk into the Government Services building in Chester County, Pennsylvania, take the elevator to the third floor, and enter a large cafeteria. It’s day three of the countywide hand recount. I find the woman in charge of observers, who trains me for five or so minutes. “The two most important things to remember,” she tells me, “is that you cannot touch the ballots, and that we aren’t here to change the outcome of the election, only to ensure that the recount is fair.”
With those guidelines, she releases me to go observe. Thankfully, I was a poll worker in New York City for the 2012 and 2016 presidential elections, so I don’t feel totally adrift. Throughout the cafeteria, there are lines of tables, each big enough for two municipal employees to sit facing each other. As one pulls a ballot from the stack and reads the candidate selected for each of the two races being recounted, President and Senate, the other repeats and tallies the names. I walk in as precinct 635 begins its count and introduce myself to counters. “I’m going to say hi but not look at ya,” the woman pulling the ballots says. “We aren’t supposed to be talking to you.”
One Republican observer stands across from me, so he can see the ballot, and another stands diagonally across, so he can see the tallies. Both are clean-shaven and wearing suits, and when I look around the room, I notice that almost all the Republicans are white men between 25 and 45 who are similarly dressed. In the Stein / Clinton camp, I’m the only one wearing slacks and a tucked-in button down, and my partner at the table, Margaret, eyes me suspiciously at first. Like almost all of our observers, she’s a white woman between 45 and 65.
“Democrat, straight,” the woman seated between us reads, pointing to where voters can choose one party’s candidates for the entire ballot. “Hillary,” she confirms, pointing at the presidential race, “and Kate,” the Democrat running for Senate.
Next ballot: “Democrat, straight, Hillary, Kate.”
After a dozen ballots, the Republican diagonal from me shoots his hand up. The man making tallies looks up at him. “Is everything okay?” he asks. The Republican keeps his hand up, his gaze straight ahead. “It was Hillary and Kate, right?” the counter says, looking at his partner and then up at me. “Right?”
A minute later, an election official comes over, and the Republican points at the paper: “He moved onto the next section without closing the last tally.” We all look down. There are four ticks in one column and one in the next column. “Okay,” the official says. “The next time there’s a vote for Kate, we can finish off that last tally. Does that work for everyone?” We nod enthusiastically. Even though I didn’t catch the mistake, I feel validated, like I’m essential to safeguarding democracy. Another ballot is pulled. “Democrat, straight, Hillary, Kate.” As the counter goes to write, his pen shakes slightly. “Four sets of eyeballs on me,” he says, forcing a laugh.
Neither of the re-counters works for the Board of Elections, which was told to begin the recount on Thursday morning and was up and running a few hours later. The first night, they had eight teams. The following morning, they required the other municipal departments in the building (the Department of Aging, Department of Emergency Services, and Office of Veterans Affairs) to loan employees, and the remainder came from administrative temp agencies. Of the 100 or so counters ensuring electoral accountability, it’s possible that some have never voted before, let alone examined a ballot.
An hour in, we break for lunch. The Republican who was across from me gathers his staff. “If you all want to head down to the first floor, we’ve got food set up,” he announces. Half joking, Margaret asks if it’s only for the Republican observers. “Yes,” he says. “It’s only for ours.”
After lunch, the trance starts again: Democrat, straight, Hillary, Kate; Trump, Pat; Trump, Pat; Hillary, Pat; Hillary, Kate; Republican, straight, Trump, Pat. There are, however, moments of excitement. When we hear “Constitution party, straight,” our heads snap to attention. The same happens when we see a ballot with the bubble filled in for Hillary and “Hillary Clinton” printed in the space for write-ins. We flag down an election official. “It’s an over-vote,” she says, meaning the voter chose more than one candidate for president and invalidated the ballot. I ask what would’ve happened if she’d only written in Hillary Clinton. “It wouldn’t have counted for the Hillary,” she says and shrugs. “There could be another Hillary Clinton.”
Margaret mentions that the other write-in ballots look suspicious; all the handwriting is the same. We learn that military members overseas can vote over email, and their selections are then transcribed to paper ballots by members of the Board of Elections. “Regardless,” the official says, “the window to challenge ballots has passed. All we’re doing today is determining the count.”
Margaret turns to me and shakes her head. “This all seems pretty futile then.”
As evidence for election fraud, the Chester County recount is fairly futile. Even if massive discrepancies are found, it will not indict the electronic voting machines that 85% of Pennsylvanians use. Because poll sites must be ADA compliant, and paper ballots don’t, for example, offer brail, Chester County has such machines available but relies mainly on paper ballots, more so than any other county in Pennsylvania. Consequently, it takes Chester County longer to certify its vote, especially this year, as one legislative race’s twenty-four-vote margin automatically triggered a recount. The Stein campaign capitalized on this delay and petitioned for a recount whose cost, by law, would be borne by taxpayers. Like the other counties in Pennsylvania, Chester could have refused, but, an election official told me, the estimated $100,000 in legal fees was far greater than the $30,000 it cost to comply voluntarily.
Three hours later, the six of us finish our stack of ballots. Of my precinct’s 616 votes, 367 were cast for Clinton and 224 for Trump. Six people voted for Jill Stein, and our re-counters each made only one mistake. An hour later, the last of the 143 precincts finish. Compared to the original results, the recount of 190,000 ballots differs by .01%.
Especially considering the costs, it’s easy to dismiss the Stein campaign. Though they’ve insisted that their goal is not to change the election’s outcome, they have not pushed for recounts in any states, like Nevada, that swung for Hillary with similarly small margins. Likewise, Stein’s campaign knew about the potential problems with Pennsylvania’s voting mechanics well before November 8th. As Judge Diamond noted, “In the run up to Election Day, Dr. Stein had the right under the Election Code to be present or to have a technical expert be present on her behalf, for the testing of the voting machines and the counting of the ballots. . .The only relevant fact unknown to Plaintiffs before the election was its outcome.” Because a recount almost never flips an election – and because the recounts undertaken so far have uncovered no irregularities – it’s equally easy to see Stein’s efforts as the final throes of denial that the rest of us have already worked through.
Regardless, I’m not ready to condemn the recounts. This is already a perilous time for voting. Since 2010, twenty states have passed new restrictions on voting, including severe voter ID laws, legislation to make registering more difficult, cutbacks on early voting days and hours, and obstacles to restoring voting rights for citizens with prior criminal convictions. For this election, seven states, no longer monitored by the federal government under the Voting Rights Act because of a recent Supreme Court decision, closed at least 868 polling places.
However, the Constitution guarantees us not just the right to a vote cast, but also to a vote counted. In that regard, Jill Stein’s failed recounts have succeeded by transforming a question that sounds like Kumbaya Green Party philosophizing into one that is, perhaps, the most pressing and pragmatic issue facing American democracy: Who’s responsible for safeguarding our elections?
The quest for recounts in three states has exposed that every relevant stakeholder – attorneys general, politicians, legislatures, judges, and voters – is either uninterested in or incapable of providing accountability. The chief lawyers in Michigan and Pennsylvania both filed suits to halt the recounts, arguing that Stein’s 1% of the vote share disqualified her petitions. In their minds, she was not sufficiently aggrieved to question the integrity of the process because she had no chance winning. For her part, Hillary Clinton, whose mere proximity to the recount would spark the same unfounded, apocalyptic conspiracy theories that plagued her campaign, has quietly observed from the sidelines.
Likewise, state governments have erred on the side of complacency. Dr. Shamos, the state’s expert witness, argued that a recount in Pennsylvania was unnecessary because of safeguards like parallel testing. On election day, some voting machines are randomly removed from poll sites and relocated to government offices. Throughout the day, employees vote on the machines using a script, which allows officials to determine if malware is manipulating vote totals. However, no state law compels counties to initiate parallel testing; of Pennsylvania’s 67 counties, only one chose to do so.
Our last custodians, the courts, have also tied their hands. In his closing statement last Friday, Stein’s lawyer again referenced the 4,087 no-votes, and Judge Diamond interrupted him: “And what’s the judicial remedy for those votes?” Maazel stumbled through an answer about voter intent, but Diamond stopped him. “Even if we could determine which candidate they intended to voted for, what would be the remedy?” Yesterday, Judge Diamond denied Stein’s request for both a partial hand recount and a forensic audit of the six models of electronic voting machines used in the state, writing that “suspicion of a ‘hacked’ Pennsylvania election borders on the irrational.”
Despite these bureaucratic and legal barriers, voters responded with unprecedented enthusiasm. In Pennsylvania, over 1,300 voters printed out recount petitions, had them notarized, paid fees that ranged arbitrarily from $90 to $320, and spent hours running from one bureaucracy to the next in order to submit them. Across the country, over 10,000 people volunteered with the Green Party to observe, manage logistics, and collect petitions, and 152,000 contributors gave almost $7.5 million. With U.S. intelligence agents “highly confident“ that Russia interfered in the campaigns (though not the election itself), and with Trump outperforming his election-eve poll numbers, on average, by over five points in MI, WI, and PA, it’s difficult to imagine conditions more favorable to conducting a recount.
Recounts are expensive, laborious, and, as was the case in Wisconsin and Chester County, liable to return the same results as before. Allowing a forensic audit of Pennsylvania’s electronic voting machines and causing the state to miss the national deadline for certifying its electors would have been exceptional, but is certifying possibly inaccurate results preferable? As Stein’s campaign conceded in court, there is no proof of hacking, but evidence of fraud is impossible to find if it’s never searched for. In that regard, the recounts hurt our democracy because the risk of malfeasance rises exponentially when it becomes clear that, even under the most favorable circumstances, such a search will never be conducted. In her drive to test the accountability of our democracy, Jill Stein has revealed it to be illusory.
When I left the courtroom on Friday, I ended up in the same elevator as Jeff Cutler and Lawrence Tabas, one of the attorneys representing president-elect Trump. As soon as the doors closed, Jeff turned toward Tabas and began his spiel. Tabas nodded along and smiled at his colleagues. “It reminds me of a voter intent case we had a few years back,” he said, looking down and riffling through his leather laptop bag. Jeff continued pleading until the elevator landed on the ground floor. “I’m here to protect the Constitution,” he concluded, standing at the threshold, blocking the rest of us from exiting. He and I locked eyes, and the attorney for Trump smiled: “Best of luck to you.”