Recount!: What about vote purging, counting errors, and provisional ballots?

I posted earlier about my skepticism that computer hacking stole the election for Trump. (Michigan, New Hampshire, and Minnesota don’t have computerized/electronic voting, but showed the same dramatic swing to the GOP vs. polling and historical patterns.)

However, there are many other valid reasons to support a recount.  First, it is still crucial to examine the flaws of electronic voting.  Second, there are accounts of clerical errors (to put it generously). Counting errors happen all the time, and they get corrected as the votes are certified, but they can also be missed. Third, and most importantly, we are seeing more and more stories about “Crosscheck,” Kansas Attorney General Kris Kobach’s multi-state effort to purge the voter registration records. The program was in place in 30 states, apparently all the major battlegrounds, many with Republicans administering it. Crosscheck appears to target minorities and the poor, though the effects and intent are disputed. The program is designed “childishly,” as described by one expert, challenging people with common last names like Williams, Johnson, Rodriguez, or Kim (guess which groups are affected the most?) But the word “childish” does not reflect the cynicism and sophisticated manipulation of its implementation state-by-state. The program could affect millions of valid voters, and unknown thousands in particular states.  You can read a critical account here and a more balanced mainstream report here.  Charles Pierce, a top-notch journalist, wrote this story about Kobach and Crosscheck in August, and it is chilling.

Vote purging is a big deal. Kris Kobach is a dangerous partisan who has a long history of racially targeted vote-purging and anti-immigrant extremism. I encountered him in law school in the 1990s, and he was rabidly anti-immigrant then, and he has only gotten worse. Kobach met with Trump last week and appears to be the leading candidate for the Department of Homeland Security. Even more chilling.

As a general public policy matter, we need a recount and an audit, regardless of its immediate impact on the 2016 electoral college. We might be able to address these problems in the future. We need to find out how vote purging worked in practice, if it literally disenfranchised valid voters. The purges tend to disproportionately target minorities and the poor, intentionally or unintentionally. The poor tend to be renters and tend to move more often, and tend to change jobs more often, than wealthy homeowners.

The question for 2016 is whether this skewing or targeting could flip three states:
PA (current margin is about 68,000 for Trump)
WI (about 22,000 for Trump)
MI (about 10,000 for Trump).

If voters were wrongly purged, or did not have an acceptable form of ID, they can file a provisional ballot in an envelope with a signature and address. There are also an unknown number of absentee ballots. I support a recount to get the count right. But I’d be surprised if there are many thousands of uncounted ballots that could swing the election. Consider that, for Hillary to make up a 10,000 deficit in Michigan, there would need to be a lot of uncounted ballots with a huge Clinton margin. Imagine maybe 50,000 uncounted ballots, with a split of 30,000 to 20,000. Possible, but unlikely. Now stretch those margins for Wisconsin and Pennsylvania.

Even if we could flip Wisconsin and Michigan, the electoral college would still have 280 GOP electors. Still, there could be some momentum over the next three weeks as Trump’s shamelessness about his business conflicts of interest or his Putin connections might flip a few GOP electors, or at least extend some drama. We’d have some continuing denormalization/delegitimization of Trump, based on fact and counting votes, rather than fiction and voter suppression. Trump was happy in October to threaten to keep us “in suspense.” Well, now the suspense is warranted. Clinton is winning the popular vote 48%-46%, and there are urgent questions about the state counts.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. Father of three, married to a Canadian, but I'm not laughing at any of the "So you really can move to Canada!" jokes in 2016. Red Sox fan, soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I'm working on a history of prosecutors and American politics.

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