Judge orders Michigan presidential recount to begin at noon Monday

Robert Snell, Christine MacDonald, and Chad Livengood
The Detroit News

Detroit — A federal judge has ordered Michigan election officials to begin a massive hand recount of 4.8 million ballots cast in the presidential election at noon Monday.

U.S. District Judge Mark Goldsmith issued a ruling just after midnight Monday in favor of Green Party presidential candidate Jill Stein, who sought to let election officials bypass a two-business-day waiting period that would have delayed start of the recount until Wednesday morning.

Goldsmith's order said the recount "shall commence and must continue until further order of this court."

"Defendants shall instruct all governmental units participating in the recount to assemble necessary staff to work sufficient hours to assure that the recount is completed in time to comply with the 'safe harbor' provision," of federal election law, Goldsmith wrote.

The deadline to finalize the vote total for the Electoral College is Dec. 13 and federal election law requires a period of "safe harbor" for presidential electors before the presidency is finalized on Dec. 19.

The manual recount process was scheduled to begin Wednesday as specified by state law, and in a rare Sunday hearing in federal court, Goldsmith had questioned the harm posed by waiting.

Stein’s lawyer Mark Brewer argued the case was aimed at ensuring the integrity of Michigan’s voting system and that the required waiting period violated Stein’s rights to due process and equal protection. He pushed for the recount of 4.8 million ballots to start immediately, which he said would be Monday morning.

“There are questions raised throughout the country about the integrity of the election system,” Brewer told the judge in front of a courtroom filled with about two dozen people, including state Republican Party Chair Ronna Romney McDaniel. “It’s not just rhetoric.”

The judge said inability for county and municipal clerks to complete the recount by Dec. 13 could endanger Michigan's votes in the presidential election.

"Without elections that are conducted fairly – and perceived to be fairly conducted – public confidence in our political institutions will swiftly erode," Goldsmith wrote.

Chris Thomas, the state elections director, testified Sunday that he could not guarantee that the recount could be finished by the Dec. 13 deadline, calling the task “doable but difficult.”

Brewer called it “highly doubtful” that the state could finish by the deadline, and asserted the recount needed to start immediately.

Goldsmith, who was appointed by President Barack Obama to the federal bench in 2010, indicated he was pursuaded that election officials need as much time as possible to pull off the ballot-by-ballot recount.

"Such uncertainty shows that there is a credible threat to the voters’ right to have a determination made that Michigan’s vote for president was properly tabulated," Goldsmith wrote.

Michigan Attorney General Bill Schuette filed an motion to intervene late Sunday, arguing Stein didn’t have a constitutional right to a recount and that she should post a bond for the entire cost, in case it is later ruled the recount wasn’t required. State officials have said the recount could cost up to $5 million.

“No Michigan voters have been, or are being, disenfranchised if a recount does not occur,” the Schuette filing read. “Michigan’s votes were counted and certified, and its electors submitted to federal authorities, all according to routine, constitutional procedures.”

The judge rejected concerns about the cost of the recount.

"As emphasized earlier, budgetary concerns are not sufficiently significant to risk the disenfranchisement of Michigan’s nearly 5 million voters," Goldsmith wrote.

Schuette's office was reviewing the judge's order early Monday morning, spokesman John Sellek said.

Barring another court intervening Monday morning, the recount will start mid-day. State election officials had plans last week to start Friday in Oakland and Ingham counties, but that was delayed due to a challenge President-elect Donald Trump brought against the recount before the Board of State Canvassers.

Stein’s recount petition claimed she was “aggrieved on account of fraud or mistake,” but offered no specific evidence of how she was harmed by Trump's 10,704-vote victory over Democrat Hillary Clinton.

Stein’s attorneys argued Sunday that voting machines can malfunction and that there was an increase in people who voted but didn’t select a candidate for president. The attorneys noted that 75,335 people in Michigan voted, but not for president, an increase from 2012 of 49,740.

“That is significant enough to change the results of the election,” Brewer said.

Her attorneys also raised the concerns that there may have been computer hacking in the voting process. The voting machines are not connected to the internet but are loaded with software that could be tampered with, said Hayley Horowitz, an attorney representing Stein.

“The machines that Michigan uses have been hacked in laboratory sessions,” Horowitz said.

But Erik Grill, an attorney for the state’s director of elections, dismissed those claims.

“There is absolutely no evidence here. It is fear and doubt. All the votes in Michigan were counted. They have no evidence Russian hackers did anything,” Grill argued.

Gary Gordon, who represents the state Republican Party and Trump, dismissed allegations of hacking, saying “gremlins, Martians and Russian hackers” can’t get to the voting machines.

The hearing in a locked and darkened federal court building came less than two days after Stein sued members of the State Board of Canvassers and Thomas. The lawsuit is one in a series of battles involving the Nov. 8 election results and came amid legal challenges pending before the Michigan Court of Appeals that could halt the recount.

The Board of State Canvassers deadlocked Friday 2-2 along party lines on a request by Trump to reject Stein’s recount petition.

State lawyers accused Stein of waiting too long to request a recount.

“They’re gaming the system,” Gordon told the judge.

Stein’s request to start the recount immediately leaves the state and GOP with little time to prepare and plan logistics of a massive undertaking involving dozens of workers and hand recounts across the state, Gordon said.

“It’s like Eisenhower invading Europe on D-Day,” Gordon said.

Ingham County Clerk Barb Byrum was in her office Sunday awaiting the judge’s ruling.

“I am prepared to follow the law either way,” Byrum said in a statement. “If it is ruled that the recount will begin tomorrow, my office will be prepared carry out that decision.”

Before the ruling, Byrum’s plan was to have 60 workers manually counting ballots Wednesday.

The judge at one point Sunday questioned how many people were needed to conduct the recount starting Wednesday and finishing by midnight Dec. 13.

“Hundreds and hundreds,” Gordon said.

The state could end up wasting money and see its reputation tarnished if Goldsmith ordered the recount start immediately in light of legal challenges in front of the state Appeals Court that could halt a recount, Gordon said.

The state could end up looking “dumb,” he said.

Brewer countered that an immediate recount could guarantee the voting system’s integrity and prove whether voters were disenfranchised.

“The only way to eliminate the risk is to start immediately,” Brewer said. “We’re talking about the right to vote, here.”

Separately, Trump sued Michigan election officials Friday in a bid to stop a recount. Trump’s attorneys asked the Michigan Court of Appeals to impose a temporary restraining order on the State Board of Canvassers and Thomas.

Trump’s lawsuit alleged the board and Thomas were “disregarding Michigan election law” in allowing Stein’s request for an 83-county recount to commence.

Stein is not an aggrieved candidate since she has little chance of personally benefiting from a shift in votes, Gordon argued.

“Stein has not alleged that she can win Michigan’s presidential election as the result of a recount, but instead contends that only vague assertions of being aggrieved are sufficient to trigger a recount of nearly 5 million votes,” Gordon wrote in the lawsuit.

Schuette made the same argument Friday to the Michigan Supreme Court in his request for an emergency Tuesday to stop the recount from likely starting on Wednesday.

Attorneys for the Republican president-elect and GOP attorney general contend Stein has not been harmed by the election results because she finished in a distant fourth place with 51,463 votes, less than 1.1 percent of the vote. Trump’s 2.27 million votes bested Clinton’s 2.26 million votes.

The Court of Appeals has given the Board of State Canvassers until noon Tuesday to respond to Schuette’s suit. The elections panel has scheduled its next meeting for 9:30 a.m. Tuesday at the Capitol.

Trump’s attorneys asked the Appeals Court to act quickly because the state’s electors are slated to cast their votes in the Electoral College on Dec. 19.

(313) 222-2486

Twitter: @robertsnellnews

Chad Livengood and Jennifer Chambers contributed