Presidential Recount 2020 – Déjà Vu All Over Again?
9.29.2020
If the 2020 election is truly close – as in too close in the days and weeks after November 3rd to know who really won – the country not only faces “déjà vu all over again” – a reminder of the chaotic Florida recount nightmares of 20 years ago – but it also faces an election crisis potentially far worse. There will be the usual issues that plague resolution of close elections such as mistake-prone election administration, poorly written election laws, heightened partisanship, and disagreements over counting rules and rulings. There will also be the problems that have arisen since 2000, including electronic voting systems that are vulnerable to hacking with results that are not fully verified, and inflammatory and false rhetoric about voter fraud to discredit the recounting process. Beyond these, a recount could become a showdown of values absent in 2000 that will likely eliminate any possibility of acceptance of results by the loser.
In anticipating what could go wrong in a 2020 presidential recount, the lessons of the 2000 Florida presidential recount are a good place to start.
1) Like Ballots Must Be Counted in a Like Manner
In Bush v. Gore, the U.S. Supreme Court concluded that Florida’s method of counting votes violated the 14th Amendment’s guarantee of equal protection of law because different counties employed different ways of counting the votes. The Court’s dissent cited favorably in a footnote a requirement by some states that challenged ballots be judged by a single recount board and standard. Nonetheless, few states have adopted that model. Daniel Smith, a University of Florida professor who specializes in elections, has found that rejection rates of mail ballots vary so widely by county that non-uniformity in how county election officials verify signatures and other details on mail ballots is almost certain. The lack of uniform statewide standards in reviewing mail ballots and the absence of a single body or standards to resolve disagreements over voter intent suggest that a Bush v. Gore challenge is possible in the event of a presidential recount, though the courts have yet to reach a consensus on the exact meaning of Bush. It is likely too late, but states would do well to address these deficiencies before November 3rd.
2) Poorly written recount laws mean poorly conducted recounts
At the root of Florida’s recount debacle in 2000 was a recount law that was not designed to resolve multi-county election disputes. Specifically, Florida’s recount law failed to include objective standards for determining voter intent – as it turned out a problem especially acute with punch card voting – leading to confusion and varying standards throughout the state. Florida recount laws have since been revised but they still do not provide proper guidance on resolving questions of voter intent. In addition, Florida has also done away with full manual recounts, though for recounts to be thorough and accurate paper ballots should be recounted by hand. Instead, the ballots are run back through scanners and only the under and over votes are examined by hand. In 2018, machine recounts in Florida were so flawed that three of the state’s four largest counties failed or refused to submit results by the deadline. Attempts to recount ballots in Michigan, Pennsylvania, and Wisconsin following the 2016 presidential election also exposed problems with the laws of those states. Counties in Wisconsin were permitted to conduct either manual or machine recounts – arguably in violation of Bush v. Gore’s equal protection holding that like ballots be counted in the same way. The machine count in Racine County, Wisconsin missed dozens of legal votes but local officials refused to hand count the ballots even after presented with irrefutable evidence of mistaken counts. Michigan’s recount law allows for entire precincts to be disqualified if the number of ballots cast and the number of names in the poll book do not match exactly – even if the difference is just one and it shown to be due to poll worker error. In 2016, Detroit election officials could not reconcile vote totals for 59% of the precincts. It didn’t matter though as a court shut down the recount, ruling that Jill Stein who initiated it was not “an aggrieved party.” A court also denied Stein’s request for a Pennsylvania recount, although more than 80% of voters used DREs without paper trails that would have rendered a recount practically meaningless (Pennsylvania has since replaced this equipment though some of the new equipment is also flawed). Each of these examples portent serious barriers to conducting a satisfactory recount should one be required.
3) The type of voting machine makes a difference in the quality of the recount
In Florida 2000 the obsolete and error-prone punch card voting systems disenfranchised thousands of voters and undoubtedly impacted the outcome. Most election experts now believe that a paper ballot system is the best option to preserving the integrity of our elections, particularly as a way to verify results and conduct post election recounts and audits. Nonetheless, pivotal counties in Georgia, North Carolina, Ohio, and Pennsylvania have invested millions of dollars in new electronic touchscreen systems called ballot marking devices (BMDs) in advance of the 2020 presidential election that possess serious security and verifiability flaws. There also remain some continued use of touchscreen direct recording electronic equipment (DREs), the badly flawed black box voting machines that replaced punch card and mechanical lever machines banned in the wake of the 2000 recount. Arizona, Florida, Michigan, and Wisconsin use hand-marked paper ballots in which digital scanners tabulate votes. These digital scanners automatically create ballot images that are stored as an electronic file and can be used to verify vote counts. In Broward County, Florida, for example, 2,040 ballots went missing during the 2018 U.S. Senate recount. Ballot images could have aided in reaching an accurate recount total. Unfortunately, election officials in Broward County and throughout nearly all the battleground states are destroying these ballot images even though federal law requires the preservation of all election materials for 22 months. Due to a lawsuit challenging the practice, the eight most populous Florida counties have agreed to preserve ballot images in the event of a presidential recount. Election officials in other battleground states have not agreed to preserve digital ballot images and only a couple of jurisdictions use them to verify results.
4) Election recounts are overseen by partisan officials
One fundamental flaw in the U.S. electoral system is that the officials who oversee every aspect of our elections from voter registration to recounts are not independent but rather are openly aligned with a political party. Most election officials do not act in a blatantly partisan way, but some do as became evident during the 2000 Florida presidential recount. Florida Secretary of State Katherine Harris, co-chair of the George W. Bush presidential campaign, repeatedly issued one-sided rulings that proved decisive to a Bush victory over Al Gore. In 2018, both Kansas Secretary of State Kris Kobach and Georgia Secretary of State Brian Kemp presided over their own highly competitive elections for governor, misusing their positions to tilt the field of the election in their favor. One key difference in 2020 is a change of chief election officials in several battleground states from Republican to Democrat, including in Arizona, Michigan, and North Carolina. Generally, Democratic officials have been more open to expanding vote-by-mail and are more open to implementing procedures in vote counting that make it more likely that votes are not disqualified for spurious, technical reasons.
5) Many voters will not have their votes counted
Not all ballots are counted in a recount. Only legally cast ballots are counted and in many states only ballots that were included in the original certified count are recounted even when legal ballots were erroneously excluded from the initial count. Ballots delivered late from the post office are not counted even if delivery is delayed by post office error. Legal ballots that were overlooked by election officials in the initial count may not be recounted in some states. Mail ballots that were excluded in the original count because election officials mistakenly concluded that the signatures on the outer envelope did not match the signature on file are usually excluded from recounts. Sometimes ballots are mistakenly left in machines that break down on Election Day and not discovered until after the initial count is completed. The candidate who is leading will often argue that those ballots not counted in the original count should not be included in a recount though the rulings in all situations vary by state.
6) There will be efforts to prevent legal votes from being counted
The 2000 Florida recount included numerous instances of challenges to legally cast ballots. In addition, there were attempts to delay and disrupt the count. For example, the Bush team made efforts to keep their candidate in the lead by delaying and obstructing the recount knowing it would end before December 12 under the “safe harbor” federal law. Republican Capitol Hill staffers staged what has been called the “Brooks Brothers riot,” posing as a random group of outraged Florida citizens to prevent the court-ordered manual recount. They were able to stop the recount in Miami-Dade County. The Trump campaign has dispatched legions of lawyers to challenge mail-in ballots and the credentials of Election Day voters. Religious right and conservative groups are also sending thousands of volunteers in battleground states to block the counting of vote by mail. If there is a presidential recount these groups will undoubtedly direct their activities to disrupting the recount.
The purpose of a recount is to produce as accurate a count as possible with a result deserving of the electorate’s fullest confidence. But by turning a microscope onto election administration, recounts also tend to expose the flaws in the system undermining confidence.
What makes a 2020 presidential recount so potentially perilous is that it sets up a scenario where flaws in the electoral system collide with the stress of conducting a recount in a pandemic following record shattering turnout, unprecedented mail voting and an unparalleled amount of litigation with controversial and sometimes conflicting rulings about who gets to vote and how ballots are handled.
Most observers believe the chaos of the 2000 Florida recount will seem tame compared to a presidential recount in 2020. Because of deep divisions in the country and the willingness of some to act upon conspiracy theories spun by the president and others, acts of disruption and even threats of violence are possible. President Trump and his supporters, in particular, will seize upon flaws in the initial count in order to claim the election and recount have been rigged. Unlike the 2000 recount that was mostly confined to the courts, an election dispute in 2020 could very well spill out into the broader political system and even into the streets.
The 2018 Florida U.S. Senate recount provides a preview of what could occur. In 2018 President Trump claimed without evidence that “missing or forged ballots” were being included in the count and that officials in Democratic-leaning counties were trying to “steal” the election. He called on state officials to stop the recount and call the race for Republican Rick Scott before all the votes were counted. President Trump himself will be on the ballot in 2020, therefore his incentive to challenge unfavorable results is significantly greater than in 2018. Some commentators suggest he may go so far as to dispatch federal marshals to impound mail ballots to prevent them from being counted if he is in the lead after the Election Day count.
President Trump’s unsupported attacks on the legitimacy of voting by mail will serve to make a recount even messier than it otherwise would be. His push to fill the seat on the Supreme Court vacated by the death of Ruth Bader Ginsburg before the election underscores his desire to pre-emptively cast doubt on election results and reveals his hope that the high court will validate his strategy of disqualifying mail-in ballots in what might be labeled Bush v. Gore revisited.
All of this amounts to a recipe for both chaos and widespread mistrust in the outcome. It remains to be seen whether those overseeing a possible 2020 recount – judges and state election officials – will have the ability, the discipline and the determination to ignore the political attacks, keep the election dispute under control, and produce a fair and accurate result in which most Americans will have confidence.
Chris Sautter is an election attorney and political consultant with nearly 40 years of recount experience. Sautter is co-author along with attorneys John Hardin Young and Timothy Downs of The Recount Primer (1994), a practical guide to recounts. He currently represents AUDIT Elections USA, a public interest group dedicated to making elections more transparent, accurate, and verified.
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