How Election Recounts Can Change Laws

November 28th 2016

Mike Rothschild

We all thought the election was contentious, but the aftermath has not led to a cooling off — not at all. While President-elect Donald Trump alleges, without any evidence, that he would have won the popular vote were it not for voter fraud, Green Party candidate Jill Stein has raised over $6 million to fund recounts in critical swing states that he won: Wisconsin, Michigan, and Pennsylvania.

No compelling evidence has emerged that hackers, Russian or otherwise, manipulated the results, and Trump's margins of victory in all three of the states are well beyond the size of any election result that has ever been overturned by a recount.

But as Stein maintained in an interview with National Public Radio, overturning Trump's wins isn't the goal; ensuring the fairness and accuracy of the election process is.

“In my view, this is not likely at all to change the outcome, and that’s what the computer and voting security experts say as well. They are not expecting the outcome to change here. But it’s the voters who benefit by standing up and saying we deserve a voting system that is secure in which we know our votes are being counted and our votes are being respected.”

Stein is correct in saying the recount is not likely at all to change the outcome in any of these states. Most recounts simply narrow or expand the slim margins that the winner prevailed by.

This was the case in the most famous recount in American history: Florida in the 2000 presidential election. The contentiousness of the recount led Florida to stop using its infamous punch-card ballots, only to replace them with ballots that couldn't be optically scanned because of design flaws.

Minnesota had two incredibly close elections go to recounts in three years: Al Franken's narrow victory via recount in the 2008 Senate race, and the state's gubernatorial election in 2010.

That governor's race saw the Democratic candidate win by 9,000 votes — a wide margin, but still close enough to allow for a recount under Minnesota laws that allowed for one in any election decided by less than half a percentage point. That recount accomplished little, and dragged the electoral process on for another month.

Those two cases led a former U.S. Attorney who worked on both recounts to make a number of suggestions for ways the state's election laws could change, including strengthening its Canvassing Board to make recounts go faster, and removing the legal requirement for a recount in the case of an election decided by half a percent. These suggestions weren't taken up, and Minnesota law still stands.

The governor's race in Washington in 2004 would go down as one of the closest in American history, with the initial tally showing the Republican candidate leading by just 261 votes. After three expensive recounts, the Democrat was left with a 129 vote lead and was sworn in — prompting a lawsuit and another recount. This didn't change the result, and the Republican finally conceded seven months after the election.

Victorious Governor Christine Gregorie then founded an Electoral Reform Task Force to ensure such an expensive and time consuming process didn't happen again.

The Task Force's paper recommended a host of changes to Washington electoral law, including moving the date of the state's primary, instituting stricter ID and registration laws, implementing more consistent procedures for vote counting, and allowing statewide voting by mail. Some of these suggestions became law, and the state went entirely to a vote-by-mail system in 2011.

It's not known what effect the 2016 recounts will have on those states' election laws, if they have any at all. The lesson is that recounts have never overturned a lead as large as Trump's, but they do provide a more accurate picture of what happened on Election Day — at the cost of a good deal of time and money.