Michigan Supreme Court denies Stein’s recount appeal

Jonathan Oosting
Detroit News Lansing Bureau

Lansing The Michigan Supreme Court on Friday denied Green Party candidate Jill Stein’s appeal to restart a partially completed presidential election recount, meaning President-elect Donald Trump’s 10,704-vote victory over Democrat Hillary Clinton stands.

In a 3-2 ruling, the state’s highest court said the Michigan Court of Appeals correctly ruled that Stein was ineligible to pursue a recount.

Republican-nominated justices Stephen Markman, Brian Zahra and David Viviano denied the appeal. Zahra and Viviano wrote a concurring opinion that further explained why the Court of Appeals was correct to rule that Stein is not an “aggrieved” candidate who could request an appeal. She finished a distant fourth behind Trump and Clinton.

“Thus, petitioner failed to allege that she has been harmed or that her legal rights have been infringed in any way whatsoever,” Zahra and Viviano wrote in the majority opinion.

Chief Justice Robert Young Jr. and Justice Joan Larsen, two Republican-nominated justices, disqualified themselves from the decision because Trump named them to his short list of possible nominees for the U.S. Supreme Court during the campaign.

Bridget Mary McCormack, a Democrat-nominated justice, said she wanted to give Stein an expedited oral argument to make her case that the recount was necessary to expose flaws in the voting system.

“The stakes in this case may be low, but the public significance of the issues could not be higher,” McCormack wrote.

Stein’s appeal asked the justices to reconsider a Tuesday decision by the Michigan Court of Appeals. A three-judge state panel ruled Stein was not “aggrieved” and had no chance of winning an election in which she received 1.1 percent of the 4.8 million certified votes.

Fellow Democrat-nominated Justice Richard Bernstein dissented, arguing he thought the Court of Appeals had erred.

“Even a candidate who is unlikely to win an election has significant legal and financial interest in ensuring the total vote count is accurate and may be aggrieved by any error in the canvass of the votes,” Bernstein wrote.

In a footnote, Bernstein rejected the notion that Stein was not eligible to seek a recount since she finished fourth in Michigan, 2.2 million votes behind Trump.

“Had the Legislature intended to only allow the most popular candidates to request a recount, it could have easily made that clear in the statute,” he wrote.

At a Friday rally in the Grand Rapids area, Trump brushed aside the news and the recount effort as a nuisance.

“I heard a half hour ago, we totally won it. Not that we care about that,” he told the crowd at the Deltaplex, adding that the recount attempt was a ploy by Stein to raise money.

Stein attorney Mark Brewer said he was disappointed but not surprised by the ruling from what he called “a very partisan court.”

“I think they’re wrong, and they just made up a new standard of law solely for the purpose of this case,” Brewer said of the determination that Stein was not an “aggrieved” candidate. “This is now going to affect every other recount going forward.”

The 1,600 new votes discovered during the partial recount of 2.1 million votes shows there is “a real problem” with aging optical voting scanner machines across the state, Brewer said, bemoaning the fact that those votes and any others that could have been found will not count because the recount was halted.

“We’re going to have thousands of disenfranchised voters,” said Brewer, a former chairman of the Michigan Democratic Party.

The recount “absolutely shows the value of Stein’s stated goal to monitor the integrity of the election,” Brewer said, noting many precincts could not be recounted because of ballot problems.

The partially completed recount of 39 percent of the state’s precincts showed Clinton made a net gain of 102 votes on Trump.

Stein’s attorneys could still pursue a federal appeal to the 6th Circuit U.S. Court of Appeals, which suggested U.S. District Judge Mark Goldsmith abide by the state court decisions on Stein’s eligibility for a recount, or even the U.S. Supreme Court. Goldsmith helped end the recount late Wednesday.

The manual statewide recount cost as much as $3 million but stopped after Goldsmith late Wednesday lifted a temporary restraining order preventing state officials from stopping a recount.

The Electoral College is scheduled to meet on Dec. 19 and officially select the president, with Michigan’s 16 electors assembling in the state Senate in Lansing.

Schuette argued in his filing that the state must communicate the final results by Tuesday. But Michigan Director of Elections Chris Thomas has said Michigan’s electors can cast their votes on Dec. 19 as long as the recount is done by a week from Saturday.

Stein plans rally

Stein has scheduled a 2 p.m. Saturday rally outside Cobo Center in downtown Detroit to protest the denial of resuming the recount. Her campaign did not immediately indicate whether the Michigan Supreme Court’s ruling would change her plans.

About 75,000 Michiganians who cast ballots did not vote for president, according to the certified results, an unusually large figure Stein cited in calling for the recount.

U.S. District Judge Mark Goldsmith lifted his order that had forced the recount to start Monday. To seek a recount, Goldsmith said Stein had a responsibility to show evidence of significant fraud or mistake, not just “speculative fear of them,” which she did not do.

Trump launched the state court battle to halt the recount, suing the Board of State Canvassers, state Elections Director Chris Thomas and Stein, who requested recounts in Michigan, Wisconsin and Pennsylvania as part of what she called an “election integrity movement.”

Young disqualified himself from the case “with reluctance,” reiterating his previous comments that “anybody can make a list” and suggesting that, at age 65, the odds of Trump picking him for the U.S. Supreme Court are “extraordinarily remote.”

“I do so in order that the decision made by my colleagues in this case will not be legitimately challenged by base speculation and groundless innuendo by the partisans in this controversy and beyond,” Young said in a statement.

Larsen, 47, said she did not take the decision to disqualify herself lightly but conceded that her appearance on a Trump campaign list of 21 possible Supreme Court nominees creates a conflict.

“I did not seek inclusion on the list, had no notice of my inclusion before its publication, and have had no contact with the president-elect, or his campaign, regarding the vacancy,” Larsen wrote. “Yet the president-elect and his surrogates have repeatedly affirmed his intention to select someone from the list to fill the vacancy.”

Young and Larsen “did the right thing” by disqualifying themselves, Brewer said.

Reimbursing Stein

If the recount is declared officially dead, Michigan Secretary of State Ruth Johnson’s office is planning to reimburse Stein for a portion of the $973,250 she paid for the effort. Under Michigan law, Stein was required to pay $125 for each of the state’s 7,786 voting precincts, although Johnson has said a full statewide recount could cost closer to $5 million.

“Stein will have her money reimbursed for the precincts that were not recounted either because it was unrecountable or because the workers didn’t get to that precinct before the recount stopped,” spokesman Fred Woodhams said Friday. “We’re assessing how many precincts were recounted. Partials wouldn’t count as being completed.”

Brewer said he has had “no official communication” with the state about a potential refund.

Stein spokeswoman Margy Levinson said the campaign “will pay for the precincts that were recounted,” but expects reimbursement for those that weren’t.

Michigan Attorney General Bill Schuette, whose office has fought to stop the recount in court, said Friday morning he does not personally think Stein deserves a dime because county clerks around the state had to hire recount workers and shoulder other costs.

“I don’t know what the tab has been to date, but the fact is, let’s make sure that our counties haven’t been nickled and dimed to a big extent before we start writing a check back for a frivolous recount,” Schuette said Thursday morning on WJR-AM 760 radio in Detroit.