A federal judge early Monday morning ordered a recount of Michigan’s presidential ballots to begin at noon on Monday, and for the state to “assemble necessary staff to work sufficient hours” to complete the recount by a Dec. 13 federal deadline.
Lawyers for Green Party candidate Jill Stein urged the action in an emergency request, and U.S. District Judge Mark Goldsmith held a rare Sunday hearing in federal court. It lasted three hours, and Goldsmith issued a written opinion just after midnight on Monday morning.
Goldsmith said a state law requiring a two business day waiting period to start the recount likely violates voting rights. Stein has shown “a credible threat that the recount, if delayed, would not be completed” by Dec. 13 — the federal “safe harbor” deadline to guarantee Michigan’s electoral votes are counted when the electoral college meets on Dec. 19.
“With the perceived integrity of the presidential election as it was conducted in Michigan at stake, concerns with cost pale in comparison,” Goldsmith said in his opinion.
In ordering the recount to begin at noon Monday, rather than Wednesday morning under the two-day waiting period the state planned to observe, Goldsmirh ordered the recount, once started, “must continue until further order of this court.”
There was no immediate word on an appeal to the U.S. 6th Circuit Court of Appeals.
Stein filed suit against state election officials in federal court in Detroit late Friday to expedite the recount, the latest in a slew of lawsuits over her request for a recount of Michigan’s presidential election vote.
Stein is seeking recounts in Michigan, Wisconsin and Pennsylvania — three battleground states that have voted Democratic in recent elections but shifted to Republican in 2016. If recounts resulted in all three states flipping to Democrat Hillary Clinton from President-elect Donald Trump, Clinton would win the presidency.
Stein has said she doesn’t expect to change the outcome, but wants to test the integrity of voting systems. She finished fourth in the presidential election in Michigan, getting just more than 1% of the vote. Official Michigan results show Trump defeated Clinton by 10,704 votes.
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Stein on Sunday wanted Goldsmith to order the recount she is seeking to start immediately, or Monday morning. Through her attorneys, she argued that a waiting period set out in Michigan law that will result in the recount likely starting Wednesday is unconstitutional because it endangers the voting rights of Michigan residents whose votes might not be counted.
Goldsmith, who was appointed to the federal bench by President Barack Obama in 2010, agreed. “The fundamental right invoked by plaintiffs — the right to vote, and to have that vote conducted fairly and counted accurately — is the bedrock of our nation,” he said in his opinion.
On Friday, the Michigan Board of Canvassers deadlocked at 2-2 on Trump’s objection to Stein’s recount request, which allowed the recount of about 4.8 million ballots to proceed. But under Michigan law, state officials must wait two business days after hearing objections to a recount petition before they can start counting. That is to allow for court review of how the Board of Canvassers ruled on the objection to the recount request. A two-business day wait from Friday means the recount would start late Tuesday at the earliest, and more likely, Wednesday morning.
Stein’s attorneys argued that would jeopardize chances to meet a federal requirement that electors be certified on Dec. 13, six days prior to the electoral college meeting on Dec. 19.
But Goldsmith heard arguments that the delay of two business days is necessary to allow for court review. He also heard arguments that there is a chance Michigan can finish the recount in a timely manner even if it doesn’t start until Wednesday morning. And he was told that because Michigan has already certified its electors for Trump, and Gov. Rick Snyder has sent that certification to Congress, there is no risk of Michigan’s electoral votes not being counted, unless the recount changes the outcome of the Michigan election.
Goldsmith asked Mark Brewer, an attorney for Stein, to explain what the harm is in waiting until Wednesday, especially after Brewer conceded that the recount could still be completed by Dec.13 if started Wednesday, though it would take more money and resources.
“I think the hearing should be over, based on that admission,” attorney Gary Gordon of Lansing, representing the Michigan Republican Party, told the judge.
To get a court order, Stein must show she will suffer “irreparable harm” if the recount doesn’t start immediately. Gordon argued that there can be no irreparable harm if the recount can still get done with a Wednesday start.
Michigan Elections Director Chris Thomas later testified that if the recount starts Wednesday, state and county officials will plan for a Dec. 12 completion, one day before the deadline. He said if things go smoothly, that is doable, but there are no guarantees, particularly if there are a large number of challenges to paper ballots by observers.
Brewer later argued there is no way of knowing whether the recount can get done or not.
In his opinion, Goldsmith agreed that if the recount did not start until Wednesday, the chances of completion by Dec. 13 were in doubt. “The best he could say was that ‘We’ll make a run at it,'” the judge said of the testimony from Thomas.
On Friday, Trump and Michigan Attorney General Bill Schuette each sued separately in state court to block the recount. Schuette has asked that his case go directly to the Michigan Supreme Court, with a ruling by the end of the day Tuesday, to expedite appeals.
Schuette also filed court papers to intervene in the Stein federal case late Sunday. An attorney for Schuette said he wants to oppose the idea that Stein’s lawyers raised at Sunday’s hearing that she is constitutionally entitled to a recount.
Schuette also said in the court filing that Stein should be required to post a bond for the entire cost of the Michigan recount.
Goldmsith did not rule on that request, but he said any costs will be mitigated by the $973,250 fee Stein was required to pay with her recount petition.
Secretary of State officials have said there is no way to be sure about the cost of the recount until it is completed, but that it might cost $5 million, with the difference between the total cost and what Stein paid borne by taxpayers at the county level.
Despite assertions from lawyers for the Michigan Board of State Canvassers and the Michigan Republican Party that the question of whether a recount is needed is irrelevant to whether Michigan’s waiting period is constitutional, Goldsmith heard arguments about whether Michigan’s voting machines could have been hacked, and whether any such hacking could have affected the outcome.
Brewer told Goldsmith an unusually high under-count — ballots with no vote for president — of about 75,000, or eight per precinct, is “sufficient to change the result” of the election.
Brewer’s assertion that the outcome could change in Michigan caused Gordon to question whether Brewer, a former chairman of the Michigan Democratic Party, was acting for Stein or for Clinton.
Hayley Horowitz, another Stein attorney, said hacking attacks on the Democratic National Committee and the e-mails of Clinton campaign Chairman John Podesta, show “there is someone out there who has the ability and interest to do this.”
Lawyers for the state board and the Republicans said Stein has presented no evidence to back her allegations of possible hacking.
“There’s absolutely no evidence here — it’s fear and doubt,” said Assistant Attorney General Erik Grill, representing the state defendants. “All the votes in Michigan were counted. We have certified election results.”
Gordon argued that Michigan’s voting machines are not connected to the Internet and are secured in such a way that “the gremlins and the Martians and the Russian hackers” can’t get to them.
Brewer and Horowitz submitted affidavits from experts declaring Michigan’s machines can be hacked, regardless of whether they are connected to the Internet. “I can’t imagine a more fundamental issue than the machinery of our democracy not counting votes,” Brewer said.
Also, state officials disclosed at the hearing that the state election results, showing Trump as the victor, have already been certified and Snyder has already certified the Trump electors and sent that information to Washington, D.C. Denise Barton, an attorney representing the Board of State Canvassers, said that means the requirement that electors be certified six days prior to the electoral college meeting on Dec. 19 has already been satisfied.
Michigan’s electoral votes are guaranteed to count, except in the unlikely event that a recount shows Trump did not win Michigan’s 16 electoral votes, in which case another set of electors could be certified and sent to Congress, she said.
Brewer then argued that it was Schuette, the Republican attorney general, who warned Friday that Michigan’s electoral votes could be at risk if the recount is not completed by Dec. 13.
“That is what brought us here,” Brewer told the judge. “The only way to eliminate that risk is to start the recount immediately.”
Gordon, who also represents Trump, said Republican officials have been counting on state law that said they had two days to object to Friday’s Board of Canvassers ruling in court. If the recount goes ahead immediately, Stein’s people will have a great advantage, because they will have their hundreds of volunteers ready to observe the recount, and the Republicans won’t, Gordon said.
The logistics of a statewide recount are so great, “it’s kind of like Eisenhower invading Europe on D-Day,” Gordon said. “It’s a logistical nightmare.”
But Goldsmith noted the recount was originally expected to start last Friday. “It seems unlikely that all or most of these plans were significantly altered in light of the delay and the proximity of the delay to the original commencement date,” he said in his opinion.
As the election recount debate lingers in Michigan, a similar effort is now headed to federal court in Pennsylvania, where Stein’s campaign is pushing for a statewide recount of votes in the presidential election on constitutional grounds. The campaign is seeking legal intervention from the federal courts after dropping its case in Pennsylvania’s state courts, arguing the state courts were ill-equipped to handle the issue.
“We are committed to this fight to protect the civil and voting rights of all Americans,” Jonathan Abady, lead counsel for the Stein recount campaign, said in a statement. “Over the past several days, it has become clear that the barriers to verifying the vote in Pennsylvania are so pervasive and that the state court system is so ill-equipped to address this problem that we must seek federal court intervention.”
The Associated Press contributed.
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