By Marjorie Cohn and Jeanne Mirer
The American people deserve to know that the outcome of this election is actually valid.
We are tired of hearing the pundits say that the election is over and there is nothing we can do when there are significant questions raised by the recounts that have been going on in Michigan, Wisconsin and Pennsylvania, as well issues raised in a recent lawsuit seeking a recount in Florida.
Hillary Clinton has garnered almost 3 million more popular votes than Donald Trump. The polls and exit polls in Michigan, Wisconsin and Pennsylvania showed Clinton was the winner. The recount efforts by the Stein campaign have revealed that many votes remained uncounted at the time those three states were called for Trump. These efforts have also raised many concerns about the validity of the outcome even before the CIA reported the intent of the Russians to influence the results of the election. Under these circumstances it is absolutely imperative that there be a full recount and investigation into potential hacking in these states, before the electors are certified and the votes of the Electoral College counted.
While states generally have been granted the right to set the rules of the election and terms of re-counts, what has happened to the efforts in the three states is alarming. In each state there have been substantial outcome determinative questions raised by the initial investigations but there have been many objections raised and appeals filed. The Stein efforts are not technically over but they may have hit a roadblock.
In Michigan, the preliminary results of the recount before the court stopped it showed that there were 75,000 ballots where the scanning machines did not pick up a vote for president in Detroit and Flint Michigan. These votes need to be hand-counted.
In Wisconsin, the different precincts and counties were given the right to choose the method of recount. In Milwaukee County, the ballots were recounted by the same machines that initially counted them. The codes to determine whether there were problems in the programming of the machines were not held in escrow by the state as required and the company that created the codes is now refusing to turn them over.
In Pennsylvania, Trump’s lead was almost cut in half as a result of actually counting more votes. Seventy percent of the precincts use voting machines which do not have a paper trail to ensure back-up paper ballots to confirm the votes. The court will not allow recounts in any precincts until three voters in the precinct present affidavits to support the recount. There are 9,000 precincts. Thus, only 30% of the precincts could be hand-recounted. It is also unclear whether the codes of the paperless machines will be made available to investigate whether they were subjected to tampering.
In the last few weeks since the recount has proceeded, Donald Trump has selected for cabinet posts persons who are in total opposition to the laws they are being asked to enforce (e.g. Pruitt at EPA, DeVos at Education, Puzder at Labor). His stated opposition to Wall Street has proven false with four high level appointees hailing from Goldman Sachs. After opposing cuts to Social Security, Medicare or Medicaid, Trump appears to be supporting the privatization of Social Security and Medicare and block granting Medicaid. Senator Jeff Sessions, Trump’s choice for Attorney General, has a checkered past with hate groups such as the Ku Klux Klan. From seeking to repeal New Deal legislation to promoting fossil fuels to accelerate climate change, to privatizing education and giving more money to the one per cent, the extent of radical change the president-elect is seeking makes it even more imperative that there is certainty as to who was the actual winner of the election.
So far the Stein campaign has spent millions of dollars on recounts, which have been hit with obstacles and pushback by the Trump campaign. But the efforts raised many questions about the validity of giving the election to Trump. Under the circumstances, the American people have the right to ensure that a full investigation and verification of the vote be undertaken before the states certify the electors.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild.
Jeanne Mirer is a civil rights and human rights lawyer in New York and president of the International Association of Democratic Lawyers.