Today, Michigan certified its presidential vote for Trump, and the 48-hour clock is ticking for a recount request (Wednesday deadline). Here is some very interesting information about Michigan’s tally: the margin for Trump is 10,000, but the state has a surprising number of “blank ballots” for the presidential race, over 80,000, called “undervotes.” (read the update at the bottom). I put “blank ballots” in quotes, because many of those votes were probably not blank. Michigan did not have a Senate or Governor race, so people who showed up to vote probably cared about the presidential election. They could have voted for third-party candidates as protest votes, but they left the presidential race blank? Michigan uses the optical scan ballots (like Scantron), so voters may not have fully bubbled in the oval for the machine to detect it, but a hand count would determine voter intent. It is still highly unlikely that Clinton would have any margin from those 80,000 sufficient to catch Trump, but that number might add up with the many provisional ballots that come disproportionately from minorities whose voter registrations were targeted for “caging” by Republicans (see post below).
The bill for Michigan’s recount is about $800,000. Stein’s lawyer in Michigan is a veteran lawyer for the state Democratic Party.
The bottom line is that there is reasonable hope for a recount to flip Michigan, but Clinton would still need both Wisconsin and Pennsylvania. Nevertheless, there is value in knowing more about our shoddy and rigged voting system and for making Trump enjoy the “suspense” he embraced back in October.
Author: Jed Shugerman
Jed Handelsman Shugerman is a Professor and Joseph Lipsitt Scholar at Boston University School of Law. He was at Fordham Law School 2013-2022. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases.
He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.
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