Quick summary: A recount in this week's Supreme Court race would be a good idea for everyone involved. Verifying accuracy is a necessity if we want to protect our right to self-government from errors, glitches, and fraud. Even the seeming winner, Brian Hagedorn, would be better off if a recount removes the shadow of doubt from his legitimacy as winner. But because our legislature, egged on by our county clerks, tightened the recount law so extremely, it's unlikely we'll get one.
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April 5, 2019 - A statewide election decided by only 6,000 votes is frustrating for everyone. Accurate or not, it indicates no clear will of the people. Chances are last week's Supreme Court race was determined by random events. Who got tied up at work and didn’t get to the polls? Who neglected to get a valid witness signature on their early ballot?
And of course, such a close result raises fears of manipulation.
I’ve been asked about what I think happened.
First, I can say with certainty that the vote totals are incorrect. Statewide results always are, not just on Election Night but even after the county clerks have certified them. Every recount always finds miscounts.
Few people know that the 2016 recount found at least 17,681 mis-tabulated votes, or 0.58% of the total, because news media highlighted only the change in the victory margin. That's 1 miscounted vote for every 170 cast. In 2016, the errors were random—affecting all candidates—so correcting them did not change the outcome.
Why so many miscounted votes? Lots of reasons, caused by both man and machine. Our elections are administered by a temporary workforce, without serious IT expertise. Even the county clerks don’t work full time on elections. Most workers are only lightly trained and supervised; get no more than four days’ on-the-job experience every year; and work under enormous time pressure. Only in recounts do they examine their work to find out how well they did. They would have to be superhuman not to make lots of mistakes.
But back to this specific race. Were the miscounts bad enough to have identified the wrong winner? And were they random?
I see no obvious sign of hacked voting machines. When someone manipulates Wisconsin's election computers to alter the outcome in a statewide race, they are most likely to mis-program the software for one or two of the big counties, and they will surely put the statewide result outside the recount margin.
But the unexpected results in this Supreme Court race came from northern Wisconsin, and the statewide result is so close that Lisa Neubauer can—if she can raise huge cash quickly—get a recount. If that was computer hacking, it took impressive effort (accessing several small counties' systems) while also being incredibly clumsy (creating results that are subject to recount.)
If a mis-tabulation (either accidental or deliberate) flipped the outcome in this Supreme Court race, my nominee for the most likely culprit is mishandled early, absentee, and mail-in ballots.
The 2016 recount found widespread errors with absentee ballots, mostly officials rejecting envelopes they should have accepted and vice-versa. But there were other mistakes, too. In Dane County alone, the recount found more than 60 uncounted absentee ballots. Neither rejected nor cast, these ballots were simply overlooked on Election Day and later, during both the municipal and county canvasses.
So we know absentee and early ballots are often miscounted by mistake, and we know those mistakes are not noticed except in a recount. We also know that in elections as anywhere else, the best place to hide fraud is where no one looks for it, and where any oddities that are noticed are written off as human error.
So messing with absentee ballots would be a good way to manipulate a relatively small number of votes.
There are many ways to interfere with absentee, mailed-in, and early ballots. As we saw in North Carolina, you can intervene between the voter and the delivery of the ballot to the municipal clerk. (That's one 'hack' that cannot be detected or corrected by a typical recount.)
But once a ballot has been delivered, it can still be rejected on several grounds.
Local officials can—must, in fact—exercise judgment (e.g., Is this handwriting legible?) when deciding whether to cast or reject an absentee ballot. And while they are exercising that judgment, they can see the name and address of the voter. That means they can make reasonable guesses about which candidate will get the votes if they decide the ballot can be cast. Implicit, unintentional bias almost certainly shapes some decisions; the effect could be much stronger with deliberate effort. Rarely does anyone review their judgments.
To be clear, I've seen nothing to indicate that such manipulation was done in this election or any other Wisconsin election, but it’s a fact that it could be done. A recount would clear that up for both those who suspect and those who deny any wrongdoing. If no recount occurs, we’ll just have to keep guessing.
But we are not likely to get a recount. For the past several years, the Legislature--urged on by the Wisconsin County Clerks Association--has tightened the recount law to make it nearly impossible to get a recount in a statewide race. Had an election held in April 2015 produced a victory margin of less than 0.50%, as this one did, Neubauer could have obtained a recount at no cost.
From the 2016 recount, we now know that a 0.58% error rate is a realistic expectation. So we can see why the old law, which made it easy to get a recount if the margin was 0.50%, was sensible. If unlike our legislators, we care about protecting our right to self-government against election errors, a recount is always wise when we could easily be declaring the wrong winner by mistake.
So we will all be well-served if Lisa Neubauer can quickly raise the cash—$2 million, based on the cost of the 2016 recount—that she'll need to get a recount. The losing candidate is the only one who can buy a recount; our laws assume voters have no standing or interest in accuracy.
But neither she nor we should underestimate the effort needed to raise that much cash that quickly. To get the cash into WEC's bank account by the deadline, she will need to raise it within about 60 hours of when WEC receives the last county's official results. Jill Stein had a little longer to raise the money (legislators shortened the deadline after Stein showed it was possible), but this election is not drawing the sorts of national interest that helped Stein raise that much money that fast.
Having said all that, if the result in the Supreme Court race was ‘manipulated,’ my bet would not be on an outcome-flipping miscount, but on the success of a last-minute, under-the-radar, highly targeted, dark-money effort to motivate northern and rural voters to get out and vote for Hagedorn.
But as long as we allow that conduct to be legal (and we do), we cannot call it manipulation. If we want to put an end to that, we're going to have to do more than complain about it. We're going to have to fix campaign-finance laws. And to do that, we voters are going to have to get a constitutional amendment.