Trump backers sue to block recounts

By Patrick Martin
3 December 2016

Supporters of Republican President-elect Donald Trump went to court in Wisconsin, Michigan and Pennsylvania, seeking to shut down the recounts of the presidential election in all three states.

The move came as election officials in Pennsylvania said that Trump’s lead in that state has been slashed from 70,000 to less than 47,000 votes. The shift was not the result of any recount, but came from counties completing the tally of overseas ballots and provisional ballots.

Trump’s margins in the three states all fall well below 1 percent: 10,704 votes in Michigan, 22,177 votes in Wisconsin, and 46,765 in Pennsylvania.

The lawsuit in Wisconsin was filed in Federal District Court by the Great America PAC, the Stop Hillary PAC and Republican Senator Ron Johnson, arguing that the recount could “unjustifiably cast doubt upon the legitimacy of President-Elect Donald J. Trump’s victory” in the state. The suit also claimed that there was significant risk that the recount would not be completed by the deadline of December 12, endangering Wisconsin’s 10 electoral votes.

The legal argument is significant, because it dovetails almost word for word with those made by Republican Party lawyers in the litigation that produced the infamous Bush v. Gore decision by the US Supreme Court in 2000. Specifically, the “damage” cited by the Bush camp which in their view justified shutting down the Florida recount was that Bush’s election victory might be compromised, and that Florida’s electoral votes might not be awarded at all if the count dragged on too long.

The Wisconsin argument actually cites Bush v. Gore directly, claiming that since the recount process is being conducted differently in different counties, it is unconstitutional. In 48 of the 72 counties, the recount is by hand. Fourteen counties plan to run the ballots through optical scanners (as they were counted on election day) while 10 counties will use a combination of the two.

This represents something of a Catch-22 situation, since Stein sought a uniform hand recount process throughout the state, only to be rebuffed by the Republican-controlled state government and state courts, which insisted the decision was up to each county. Now that the counties have decided differently, this is presented by the Republicans as a reason to halt the count altogether.

In Michigan, the Board of State Canvassers, meeting Friday, blocked an objection to the recount filed by Trump supporters, when it split 2–2 along party lines, with the two Democrats backing the recount petition brought by Green Party presidential candidate Jill Stein.

Michigan Attorney General Bill Schuette, a Republican, filed a lawsuit the same day in the Michigan Court of Appeals to stop the recount, opening a second line of attack for the Trump supporters. Schuette made the same argument as the Wisconsin suit, adding the prospective cost of the recount, for which Stein has raised more than $1 million for Michigan alone. He claimed that it was “inexcusable for Stein to put Michigan voters at risk of paying millions and potentially losing their voice in the Electoral College in the process.”

The claim that the recount could delay certification of Michigan’s electors is something of a self-fulfilling prophecy, since Schuette’s lawsuit itself has the effect of delaying the start of the recount, and reducing the time available for completing it before the deadline. This is exactly the calculation of those who brought the suit.

In Pennsylvania, lawyers for Trump and the state Republican Party sought to quash legal proceedings brought by Stein to force a recount, going to court late Thursday. They accused Stein of “bringing mayhem” to the election process and presenting no evidence of hacking or other distortion of the vote count—although a hand recount would be required to provide such evidence. A court hearing is scheduled for Monday.

One of the lawyers involved in the Pennsylvania suit is Trump’s newly-named White House counsel, Donald McGahn. All three legal actions were filed within the same 24-hour period, suggesting a high degree of coordination between the Trump transition, the Republican National Committee, and the various state Republican parties and state governments involved.

All clearly see the recount as a significant threat to the legitimacy of Trump’s presidency, particularly given that he has lost the popular vote by a margin of at least 2.5 million votes, a figure which is likely to grow larger as the last ballots are counted in California. Trump’s margin in the three industrial states that gave him an Electoral College majority is 79,846 votes. Clinton’s overall lead in the popular vote stands at 2,544,817.