Green Party presidential candidate Jill Stein is leading a drive to recount votes in at least two swing states. Historically, how have these efforts fared and could they affect the 2016 presidential election's outcome?
As of Tuesday morning, Donald Trump has 306 electoral votes after the November 8 presidential election and Hillary Clinton has 232 electoral votes. A candidate needs 270 votes to win the election outright.
Yesterday, Michigan’s 16 electoral votes went to Trump when the Michigan Board of State Canvassers certified Trump as the winner in that state by a margin of 10,704 votes. Stein is expected to ask for a recount in Michigan on Wednesday.
Last Friday, the Wisconsin Elections Commission received two recount requests from Stein and another candidate, Rocky Roque De La Fuente. The commission in Wisconsin has started the recount process.
By itself, Wisconsin’s 10 electoral votes won’t likely tip the election scales to Clinton. Even if Trump lost a Wisconsin recount and lost the final count in Michigan, the Republican candidate would be 10 votes above the Electoral College threshold to become the next President outright.
It would take a successful recount in at least one other state (such as Pennsylvania with its 20 electoral votes), or the defection of at least 12 Electoral College members to throw the election to Clinton or the House of Representatives – if Trump loses Wisconsin and Michigan. In Wisconsin, Trump leads Clinton by about 24,000 votes out of 2.9 million votes cast in the election in the most-recent official results. His lead is even bigger in Pennsylvania, a total of about 70,000 votes, or a 1.2 percent margin over Hillary Clinton.
Such an unlikely outcome would fly in the face of history and trigger its own type of post-election battle. Those Trump vote margins are significant when it comes to recounts. Back in 2004, a similar recount request in Ohio by the Green Party showed a net change of about 300 votes in the George Bush-John Kerry race. The 2000 race between Bush and Al Gore involved disputed Florida votes in the 1,000 to 1,500 vote range.
In one recent Senate election where a recount saw a trailing candidate eventually win after a recount, Al Franken defeated Norm Coleman in a swing of 527 votes in Minnesota in 2009. Franken initially trailed by 215 votes and won by 312 votes in a recount fight that lasted about eight months. And there was the Washington state election for governor in 2004, when Democratic candidate Christine Gregoire overcame a 261-vote deficit to win the election - after two recounts - by 133 votes out of 2.8 million cast.
Stein is expected to ask for recounts in Pennsylvania as well as Michigan, and she is required to pay for the recount efforts initially as required under those state’s laws. (She has reportedly raised about $6 million to cover recount costs in two states.)
If the Michigan recount takes place, about 4.8 million ballots will need to be counted by hand. In Wisconsin, Stein has sued to force a recount of ballots by hand. But in Pennsylvania, the recount process is very difficult for Stein and dissatisfied voters. More than 27,000 voters in Pennsylvania would need to sign petitions in a cumbersome process, with the apparent deadline already passed in some districts. Stein would only be left with a court action to address fraud allegations, and Pennsylvania uses an electronic voting system that makes any fraud allegations problematic.
It is important to remember that the settlement of the election disputes must happen within the state legal system. And bigger issues are requirements under the Constitution and federal law for states to send their certified list of electors to Congress after the electors meet within each state.
Under federal law (3 U.S. Code § 5) known as the safe harbor provision, a state must determine its electors six days before the Electoral College members meet in person. In 2016, that deadline is December 13, since the college votes on December 19. (Back in 2000, a deeply divided Supreme Court, in a 5-4 vote, wouldn’t allow an extension of the safe harbor deadline proposed by Justice Stephen Breyer in the specific case of Florida’s recount.)
In 2016, all three states would need to complete their recounts by December 13. The losing side in the recount has the ability to appeal to the courts before then. But the recount process needs to take place in the space of about two weeks, with Trump somehow losing three recounts. Such an outcome would be without precedent, since more than 100,000 ballots in three states would need to change their status.
Scott Bomboy is the editor in chief of the National Constitution Center.
