The Morning Jolt

Elections

Where the Vote Count Stands

A poll challenger looks at absentee ballots to be counted on Election Day being processed by poll workers at the TCF Center in Detroit, Mich., November 2, 2020. (Rebecca Cook/Reuters)

This weekend, the news organizations projected Joe Biden the winner of the 2020 presidential race; Democrats danced in the streets, and Biden and Kamala Harris gave their victory speeches. Foreign leaders and former presidents sent congratulatory messages to Biden. President Trump has not conceded the race. This morning, you don’t need anyone to tell you how to feel about all this. You need someone to tell you the vote margin, the threshold for mandatory recounts, what to expect if there are recounts, and the status of the Trump campaign’s various lawsuits about the vote counts.

The Vote Count, as of This Morning

Here is where the vote count stands in each of the close swing states:

North Carolina: with Trump ahead by 75,371 votes, or 1.38 percent, and Senator Thom Tillis leading by 95,397 votes, or 1.77 percent, the race has not been called because of the roughly 95,000 outstanding (not arrived) mail-in ballots, 30,000 arrived but untallied absentee ballots, and 41,000 provisional ballots that remain.

North Carolina law allows candidates to request a recount if the margin is 1 percent or less. At this point, Trump’s lead is outside the margin for a potential recount.

Arizona: Joe Biden leads by 16,985 votes, or 0.51 percent (fifty-one one-hundredths of 1 percent).

Arizona does not allow candidates to request recounts, but a recount is automatic if the margin is “one-tenth of one per cent of the number of votes cast for both such candidates or upon such measures or proposals” or “two hundred votes in the case of an office to be filled by state electors and for which the total number of votes cast is more than twenty-five thousand.”

At this point, Biden’s lead is outside the margin for an automatic recount.

Georgia: Joe Biden leads by 10,353 votes out of 4.98 million cast, or two-tenths of one percentage point.

Georgia has no automatic recount laws, but a candidate can request a recount if the margin is less than or equal to 0.5 percent. Georgia counties must certify their results and then send them to the Georgia Secretary of State, and then the Secretary of State certifies their results by November 20, and then a campaign must request a recount within two days.

At this point, Georgia’s vote sums are well within the margin for a potential recount.

Pennsylvania: Joe Biden now leads by 42,539 votes, or 0.63 percent (sixty-three one-hundredths of 1 percent). Pennsylvania law requires a recount when the margin for a statewide office or ballot measure is less than or equal to 0.5 percent of the total vote, and certain counties may choose to recount, if there is a verified discrepancy in the returns. At this point, Biden’s lead is outside the margin for an automatic recount.

(The Democrats who allegedly nefariously “fixed” the Pennsylvania elections in favor of Joe Biden forgot to ensure Democratic victories in the race for auditor general, state treasurer, half of the state’s U.S. House seats, a majority of the State Senate seats, or a majority of State House seats. In fact, as of this writing, it appears that Republicans may have expanded their state house majority; they’re currently leading Democratic incumbents in three races not yet called. This must be the most slipshod, sloppy, laziest vote-fixing conspiracy ever.)

Nevada: Joe Biden now leads in Nevada by 34,283 votes, or 2.59 percent. There is no automatic recount threshold in Nevada; a losing candidate may request a recount within three days of the statewide canvass. The requesting candidate pays for the recount but is refunded the money if the recount alters the results in the requesting candidate’s favor. (Leave it to the home state of Las Vegas to turn their recount into a giant gamble with a potential cash prize at the end.)

Wisconsin: News organizations have declared Biden the winner of America’s Dairyland, with a lead of 20,540 votes, or 0.63 percent (sixty-three one-hundredths of 1 percent). The state does not have an automatic recount threshold, and the Trump campaign would have to pay for the recount:

Following the 2016 recount, the Republican-controlled Legislature passed laws tightening the requirements for requesting a recount and adjusting how it would be paid for. The new rules only allow recount requests from candidates who trail by less than 1 percent of the vote. The deadline for requesting a recount is now shorter, one day after the last county certifies its total instead of three days. The law also adds expenses from the Wisconsin Elections Commission to the overall bill to the campaign requesting the recount.

The state pays for a recount when the margin is less than 0.25 percent.

Biden’s unofficial lead over Trump is about 0.62 percent, according to the Wisconsin Elections Commission, so the Trump campaign would have to foot the bill for a recount. The 2016 recount cost a little more than $2 million.

A request would have to be made this month. The deadline for county clerks to certify their results is Nov. 17, though the WEC notes the counties will likely have it done before then. Whenever the last county certifies its results, the clock starts ticking for the Trump campaign to ask for a recount.

A point about all of these potential recounts is that no one should expect the post-recount vote totals to be dramatically different from the pre-recount vote totals. As noted this weekend, from 2000 to 2019, only 31 of 5,778 statewide general elections had recounts, and those 31 recounts resulted in an average margin shift of 430 votes between the frontrunners, representing 0.024 percent of the vote in those elections. “The largest margin change occurred in Vermont in 2006, where initial errors in hand-counting resulted in a 0.107 percent shift in the recount margin.”

Before anyone gets excited about a one-tenth of 1 percent change, that Vermont auditor’s race had only about 250,000 votes cast. It initially ended with the Republican candidate winning by 137 votes — and the secretary of state certifying the result! — before a hand recount was completed and a judge certified the Democrat had won by 102 votes. No one should expect a recount to alter the results by more than a few hundred votes in either direction. And sometimes the frontrunner gains votes; it is easily forgotten now, but a recount in Wisconsin in 2016, requested and paid for by Green Party candidate Jill Stein’s campaign, added 844 votes to Trump’s total and 713 to Hillary Clinton.

The Trump Lawsuits

In Friday’s Morning Jolt, I noted three unsuccessful lawsuits by the Trump campaign in Georgia, Michigan, and Pennsylvania.

In a separate lawsuit in Michigan seeking to delay the certification of results in Detroit, Circuit Court judge Timothy Kenny denied the request, declaring, “plaintiffs do not offer any affidavits or specific eyewitness evidence to substantiate their assertions. Plaintiffs merely assert in their verified complaint, ‘Hundreds or thousands of ballots were duplicated solely by Democratic party inspectors and then counted.’ Plaintiffs’ allegation is mere speculation . . . This Court finds that it is mere speculation by plaintiffs that hundreds or thousands of ballots have, in fact, been changed and presumably falsified.”

In Nevada, Nevada Republicans filed suit in federal court to cease use of a signature-verification machine for mail ballots in Clark County, alleging the signature-verification system is using lower quality images than the software requires. The preliminary injunction was denied. Before the election, Nevada Republicans filed a similar claim in state court, and Carson City district-court judge James Wilson denied their request, ruling that the plaintiffs lacked legal standing to bring the case and had failed to provide evidence of “debasement or dilution of a citizen’s vote . . . no evidence was presented of any [system] errors or inaccuracies. No evidence was presented that there is any indication of any error in Clark County Agilis signature match rate.”

Elsewhere in Nevada, a Trump campaign lawsuit about observers monitoring the vote count was settled when the county registrar’s office allowed more access to the tables.

In Arizona, the Public Interest Legal Foundation and local GOP lawyer Alexander Kolodin filed suit, contending that the use of Sharpies caused the ballots to be invalidated, and asking that “all ballots left uncured or denied due to the required use of Sharpies be identified and corrected.” But three days later, Kolodin dismissed the suit.

As noted last week, Arizona state attorney general Mark Brnovich investigated and concluded, “Based on correspondence and conversations with Maricopa County officials, we are now confident that the use of Sharpie markers did not result in disenfranchisement for Arizona voters. We appreciate the county’s prompt insight and assurances to address public concerns.”

However, the Trump campaign and Arizona Republican Party have filed a separate lawsuit that is similar to the concerns about the use of Sharpies or felt-tip markers invalidating ballots and appearing to be overvotes. The lawsuit doesn’t mention Sharpies specifically, but contends:

. . . when ballots containing ink “bleeds,” splotches, stray marks, or other facial irregularities were submitted to the electronic tabulator, the tabulator frequently signaled an alert indicating that the ballot contained one or more overvotes or other apparent defects. Upon information and belief, when confronted with tabulator alerts, poll workers in Maricopa County regularly and systematically either (a) pressed the green button without the voter’s authorization or assent, or (b) instructed or induced the voter to press the green button without disclosing that doing so would cause the ballot to be disqualified and not tabulated with respect to any candidate races or ballot propositions that contained the apparent overvote or other ostensible defect or irregularity… the adjudication and tabulation of these ballots would yield up to thousands of additional votes for President Trump and other Republican candidates in the November 3, 2020 general election.

As I emphasized Friday, the only force that can alter anything about the now largely concluded count in these states is a judge’s order. It is not hard to find people making dramatic claims about crimes involving ballots but not going to law enforcement or party lawyers about it. Out in Wisconsin, “multiple sources tell ‘The Dan O’Donnell Show,’ municipal clerks and vote counters across the state simply filled out witness signatures themselves. Acting on false and unlawful advice from the Wisconsin Elections Commission, these clerks may have inadvertently invalidated thousands of absentee votes.”

No offense to the Dan O’Donnell Show, but if those sources genuinely witnessed municipal clerks and vote counters violating the law by filling out the witness signatures on thousands of ballots, they shouldn’t be talking to a Milwaukee talk-radio program; they should be talking to the U.S. Attorney’s office.

Axios reports that Trump’s team wants to hold campaign-style rallies in the states with election results they dispute. Rallies cannot change vote totals; the votes are cast, and the ballots are largely counted. The only thing that can alter these vote totals and certification is a judge’s order. The Trump campaign contends that in the swing states that they lost, they lost because Democrats stuffed the ballot box with ineligible votes. The only way that Joe Biden’s victory speech proves premature is if the Trump campaign can go into courtrooms in at least two states (Pennsylvania and Wisconsin, or some other combination of the states above) and prove, beyond any doubt, that tens of thousands of ballots for Joe Biden are fraudulent.

Everything else is just noise.

ADDENDUM: Not that the national popular vote determines the president, but both Biden and Trump have blown past the previous all-time record for most votes in a presidential election — held by Barack Obama in 2008 — with 69,498,516 votes. As of this writing, Biden has 75,551,684 votes, and Trump has 71,189,789 votes. Biden has a 2.9 percentage point lead in the national popular vote.

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