Stein Recount Litigation Moves Forward in Wisconsin
June 11, 2019
In Wisconsin, we continue to prevail against legal maneuvering by the voting machine corporations attempting to block scrutiny of their software. We have also won court rulings that block their effort to impose a gag rule on us to prevent public disclosure of the results of our upcoming software investigation.
How can we trust our elections if critical software, controlled by private corporations, is shielded from scrutiny? For details on the legal battles in Wisconsin, keep reading.
Since our December victory in Wisconsin when a court ruled that voting machine vendors can not prevent us from making public statements about the results of an upcoming review of voting machine software, the case has continued to move through the appeals process. On April 10, 2019, the Wisconsin Circuit Court—which previously ruled that the vendors could not force us to agree to an overbroad gag order in exchange for software access—rejected the vendors’ proposal to indefinitely halt the software review, agreeing only to grant a stay pending the vendors’ initial appeal. As always, we are continuing to fight in court for an election system we can trust, that is accurate, secure and just.
Court Rules for Stein Recount, Denying Attempt to Prevent Public Disclosure of Voting Machine Inspection
FOR IMMEDIATE RELEASE THURSDAY, JANUARY 10, 2019
Stein Recount 2016
Contact: Dave Schwab, firstname.lastname@example.org 518-610-2708
Today, former Green Party Presidential nominee Jill Stein announced another win in her push for election integrity in the 2016 recount follow up. She hailed a Wisconsin court ruling that denied a request by voting equipment corporations that would have barred any public disclosure of the findings of a groundbreaking examination of voting machine software that the Stein campaign will conduct. The voting machine corporations sought the gag rule in the wake of a Wisconsin Elections Commission decision allowing the Stein campaign to inspect this software and review its accuracy and reliability.
“This decision is a huge win for voters everywhere, and for the common-sense principle that the accuracy and reliability of our voting system is more important than shielding corporations from scrutiny,” said Dr. Stein. “As the Wisconsin Elections Commission ruled and the court affirmed, the law is unambiguously on our side. If the voting machine corporations had their way, we’d be prohibited from disclosing our findings under penalty of law, even if we discovered evidence of problems that could have changed the outcome of the election.”
“The only reason for voting machine corporations to push for a gag rule was to prevent us from revealing any problems with their machines, which would threaten their ability to keep profiting off our elections. It’s outrageous that we’ve had to go to court to argue that the integrity of our elections is more important than protecting corporations.”
Wisconsin Recount Report
The 2016 recount effort in Wisconsin began with thousands of citizens who asked a fundamental question for any democratic republic: can we trust that our votes were counted accurately? Despite their valiant efforts to verify the results, the answer remains: we don’t know.
The Jill Stein for President campaign made the decision to request a recount in Wisconsin after leading election integrity experts approached the campaign with substantial concerns about the official results in Wisconsin, which diverged significantly enough from both pre-election polls and exit polls to be statistically improbable. State election officials demanded a $3.5 million filing fee, a huge increase from the initial estimate of $1.1 million, which was nevertheless covered by individual contributions from over one hundred thousand people. After the courts denied access to voting machines, the Wisconsin Election Commission decreed that each county could decide how to conduct the recount. 51 of 72 counties, accounting for 52.8% of total ballots cast, opted to conduct recounts by hand, while the others including most large counties decided to simply run ballots through the same machines that had done the initial counts. 3,000 volunteers stepped forward to monitor the recounts.
In counties that conducted hand counts, at least 17,681 votes were found to have been miscounted in the initial count, while the machine recounts found very little change. However, vote-counting errors were discovered in 64% of total polling places even though election officials had sworn that all results were “correct and true”. In at least two counties, recount observers noticed that vote-counting computers were equipped with wireless communications capabilities, despite frequent assurances by local, state and national officials that our vote-counting machines are never connected to the Internet.
The lack of hand recounts in some of Wisconsin’s largest counties, including those with the largest populations of color, means that we are unable to say for sure whether the 2016 election results can be trusted. Time and time again, recount efforts and other investigations into election integrity have found that communities of color are the prime targets in efforts to suppress or otherwise tamper with the vote. The US Civil Rights Commission found that African-American voters are 900% more likely to cast a vote that is not counted than White voters. Before the Michigan recount effort was halted by partisan judges, it exposed major problems with voting machines in predominantly African-American areas, prompting Detroit to replace its failing voting machines. Similarly, in September 2017, the Wisconsin Election Commission voted to decertify voting machines that had been used in Racine County (the state’s 5th largest county, with a 31% nonwhite population) based on observations of machine failures during the recount. However, Milwaukee County, the state’s largest county and home to almost 70% of its African-American population, has not faced the scrutiny of a full recount by hand. As of November 2017, nearly a year after the recount was initiated, the Wisconsin Election Commission has still not made a decision on whether election integrity advocates can examine voting machines used in the state.
All in all, the Wisconsin 2016 recount effort led only to a partial recount in Wisconsin, which didn’t answer the fundamental question of whether we can trust the official results reported on the night of November 8, 2016. This is in disturbing contrast to many other modern democratic states around the world, where audits and recounts are regular procedure when results are close. The recount effort exposed many vulnerabilities of the election system, yet in its aftermath some political actors have been scheming to make it more difficult for the people to verify the vote, instead of easier. Only one thing is clear: if we want to continue claiming that the United States is a democracy, we must keep fighting for a voting system we can trust, that is accurate, secure and just.
Wisconsin Recount Litigation Summary
The recount petition filed in November of 2016 has already demonstrated the need for better machinery, and audits, for Wisconsin elections. Where the recount action was successful, in counting paper ballots, it was discovered that more than 17,000 votes were miscounted. Since that time, the continued recount effort has been in litigation. We are getting close to the terms of a forensic examination of voting equipment software, but the Wisconsin Election Commission has been moving slowly, and the voting machine vendors have been resisting a meaningful review on grounds of proprietary protection.
This document is the Affidavit of Professor Alex Halderman, the lead expert on computer science for the Stein recount effort. Dr. Halderman makes the case for a narrowly tailored examination, but one that is complete. He also explains why the security aspects of voting equipment need to be examined. The appendix to Dr. Halderman’s Affidavit lists his impressive credentials and his many professional publications and collaborations.
The WEC Decision of 3/15/18 represents a significant victory regarding examining computer software on some Wisconsin voting equipment, both ballot readers and Direct Recording (DRE) machinery. While it is not the comprehensive review the recount effort seeks, it should be able to reveal much on the integrity of that equipment; however, the Decision does not include a provision to examine security aspects of voting equipment. Both Jill Stein and the vendors have appealed the decision. The most pronounced impediment to proceeding is the issue of a confidentiality agreement, concerning what is, and is not, proprietary. Jill Stein and her assigned experts will not agree to terms that attempt to mute the findings of the software examination.
The voting machine vendors filed an Appeal of the Wisconsin Election Commission Decision of March 15, 2018. Essentially, the vendors contend that any public release of the results of forensic examination will be a threat to trade secrets. They want a Confidentiality Agreement that mutes Jill Stein, and others involved, from pubic release of such results. This document shows the vendors’ total absence of case law to back their position, as well as their dismissive attitude toward the recount, and toward the public’s right to have elections we can trust. The vendors also use the Appeal Petition to diminish Jill Stein’s request for a recount, while it also attempts to smear her assigned experts. It is a shallow filing which fails to establish any merit in vendors’ claims of potential harm.
This is Jill Stein’s Appeal of the Wisconsin Election Commission Decision of March 15, 2018. Counsel representing the Stein recount make the case for a more comprehensive examination than that outlined in the WEC Decision. The case is made, strongly, for a forensic examination the achieves the aim of actually gauging the performance of election machinery to be reviewed, including its security functions. It also points out the ambiguity of the independent contractor’s report (contracted by WEC to provide technical guidance to the commission), concerning the functions of the software that the WEC recommends be examined. Namely, Jill Stein wants the security aspects of voting equipment to be included in the forensic examination.