Judge rejects request to force Wisconsin recount by hand

Judge Valerie Bailey-Rihn
Judge Valerie Bailey-Rihn (Photo: WBAY)

MADISON, Wis. (WBAY) – A Dane County judge has knocked down Jill Stein’s request to conduct Wisconsin’s recount exclusively by hand to rule out any electronic tampering with the results.

On Monday, in setting the timetable and requirements for the recount, the Wisconsin Elections Commission (WEC) denied Stein’s request for a hand count, saying state law gives clerks the power to decide how to recount the ballots — especially in light of the number of votes that need to be counted before the federal deadline of December 13. Stein’s campaign responded with a civil lawsuit to seek a court order.

In her decision Tuesday night, Judge Valerie Bailey-Rihn said Stein’s experts couldn’t present “clear and convincing evidence” that Wisconsin voting equipment was compromised, only that it was possible.

“A hand recount is the gold standard, it’s the best we can do. I don’t think there’s any dispute to that,” the judge said, and she noted there’s no difference in cost to taxpayers since the campaign pays for it. “However, it’s not the court’s decision to decide the best way… I have to do what the law tells me to do.”

The ruling came four hours after the hearing began, and after the judge took a brief recess around 8 p.m.

Stein says there were “statistical anomalies” in results where voters used electronic voting machines. Attorneys for her campaign called several witnesses to support their claim that hackers might have launched a cyber attack or planted malicious software that changed the outcome of the race.

A University of Michigan professor who’s an expert on cyber security testified that it’s possible and that the Wisconsin Elections Commission doesn’t have enough protocols in place to prevent hacking.

Professor Alex Halderman testified, “I believe that a hand recount, or other methods of determining to a high statistical confidence that the physical record matches the digital record, are necessary as a routine matter of election security.”

Under examination, Election Commission Administrator Michael Haas was asked if he was aware of any problems with the vote tabulation or counting, any malware in any machines, or any cyber attacks against the machines. He answered “no” to all three.

The elections commission has also argued a hand recount would take a long time and a lot of people to do it.

“I will allow the 19 counties to do the recount the way they intended. I think everyone strongly encourages them to do the recount by hand, but it is their decision,” Bailey-Rihn said.

The Stein campaign will decide Wednesday whether to appeal the ruling.

Wisconsin Attorney General Brad Schimel issued a brief statement Tuesday night:

I am very pleased with the Judge’s decision, particularly because she followed the law enacted by the legislature that sets the parameters for a hand recount. The outstanding effort of the Department of Justice attorneys and staff who worked on this case makes me extremely proud.”

Stein’s Green Party wired the state nearly $3.5 million Tuesday afternoon before the 4:30 p.m. deadline to begin the Wisconsin recount.

Tuesday afternoon the WEC confirmed it made a calculation error when it added up the estimates from county clerks on how much the recount would cost in their county. The elections commission should have quoted $3.9 million — it was off by $400,000.

The WEC says regardless of its mistake, Stein will have to pay whatever the total cost is. For now the campaign was only required to pay the $3.5 million that was quoted.

If the actually cost comes in higher, her campaign will have to pay the difference; if the cost comes in lower, the campaign will be refunded the difference.

Until the counties have actual costs, not estimates, the state will hold all of the money. That’s causing some concern for Fond du Lac County Clerk Lisa Freiberg, who says the county will likely spend $30,000 on the recount.

While state statute says the county will be reimbursed, there’s no timeline for the county to get its money.

“My election canvassers and board of canvass will expect payment, of course, and I’m expecting that money will be spent out before it’s coming back in,” Freiberg said.

“It’s laid out in statutes. I don’t know the exact timeline when it will happen, but they’ll have to actually submit costs to us and we will pay them as soon as we can,” the WEC’s Reid Magney said.

That means the money will come out of the county’s budget, which is paid for by taxpayers, until the reimbursement is received.

Republican Party of Wisconsin Executive Director Mark Morgan issued a statement Tuesday night on the recount:

This recount is nothing more than one final, desperate attempt by Wisconsin Democrats to change the outcome of the election. There is no justification for a recount and this is precisely the kind of underhanded political tactics that the voters of Wisconsin rejected on November 8th. While Hillary Clinton and her liberal allies are focused on undoing the will of the voters, we remain committed to protecting the integrity of the election process here in Wisconsin.”

The Green Party was also raising money for recounts in Michigan and Pennsylvania.

A hearing is scheduled in Pennsylvania on December 5 on Stein’s request for a court order to force a recount.