Green Party presidential candidate Jill Stein has filed a last-ditch effort for a Pennsylvania recount in federal court, and her hopes are riding three constitutional arguments.
Stein and her attorneys filed the 19-page lawsuit in the U.S. District Court for the Eastern District of Pennsylvania on Monday morning. Whatever action that court takes will need to happen quickly, since the state would need to complete vote recount in the presidential election by December 13 or in about a week’s time. As of Monday, Donald Trump led Hillary Clinton by about 50,000 votes in the state.
Link: Read The Lawsuit
Last week, Stein dropped an effort to get the state court system to force a recount in the Pennsylvania vote after she said that a $1 million deposit to offset preliminary recount costs was unreasonable. Stein also faced serious logistical issues under the state recount law, which requires voters in more than 9,000 districts to ask for a recount based probable cause of voter fraud by making notarized statements.
The plaintiffs want the federal court to order a recount of the Pennsylvania’s paper ballots and conduct a forensic examination of the electronic voting machines. The lawsuit, however, doesn’t appear to present any eyewitness evidence of machine tampering.
Stein and a second petitioner, a registered voted named Randall Reitz, claim that electronic voting systems used at Pennsylvania’s polls can be easily accessed by computer hackers and the machines are used by as many as 72 percent of Pennsylvania’s registered voters. “As a number of leading experts have testified, Pennsylvania’s DREs are antiquated and vulnerable to hacking and malware,” Stein and Reitz argue.
They also argue that Pennsylvania’s recount law is a convoluted “a patchwork of antiquated and fundamentally unfair election laws that make the promise of a recount in Pennsylvania illusory.”
Stein and Reitz want the federal court to act on three issues, including two 14th Amendment claims and a First Amendment claim. They allege Pennsylvania is “maintaining and implementing a system of voting that denies Pennsylvania voters the right to vote,” in conflict with the 14th Amendment’s Equal Protection clause. The second claim is that the state’s “unfair” voting system conflicts with the Due Process clause of the 14th Amendment.
And finally, Stein and Reitz state that Pennsylvania’s voting system is “fundamentally unfair and that denies and severely burdens the right to vote and that violates the First Amendment to the United States Constitution. The state’s interest does not justify that severe burden.”
Regardless of the constitutional merits stated in the lawsuit, several large barriers remain in the way of forcing a Pennsylvania recount that would affect the final presidential election, where Trump has 306 electoral votes. A winning candidate needs 270 votes, and Trump would need to lose recounts in two other states, Michigan and Wisconsin, for the election to change.
Time is also a significant factor. Under federal safe harbor provisions, Pennsylvania must determine its electors by December 13, or six days before the Electoral College members meet in person on December 19.
In 2000, it was the safe-harbor provision that was a key factor in the Supreme Court’s 5-4 vote in the Bush v. Gore case. The Court ruled that no constitutionally valid recount could be accomplished by the safe-harbor deadline.
Also, constitutional election expert Rick Hasen posted a brief note on his Election Law Blog raising a point about a legal concept called the doctrine of laches barring Stein’s lawsuit from moving forward. Laches involves an unreasonable delay in taking a lawsuit to court.
“It’s not as if Stein or anyone who looked would not have seen the supposed problems with [Pennsylvania]’s voting machines either before the election or perhaps the day after election day,” Hasen said.
Scott Bomboy is the editor in chief of the National Constitution Center.
