Other postelection analyses noted additional institutional barriers in Michigan. The affidavit developed by state Election Director Chris Thomas—where people lacking ID or not listed in precinct poll books swore they were registered voters and received a regular ballot—was not promoted by poll workers, according to a summer 2017 report by Miles Rapoport, the former Connecticut secretary of state and Democrat, who was president of Demos and Common Cause. He also wrote, “Michigan is another Crosscheck state, where five hundred thousand ‘potential duplicates’ were found, and at least fifty-five thousand voters were taken off the rolls as a result.”237
In neighboring Wisconsin, different obstacles emerged in a state that until recently had the best nonpartisan election overseers in the country, a bipartisan panel of retired state judges known as the Government Accountability Board. However, Republican Gov. Scott Walker and a GOP-majority legislature retired that panel, among other anti-voter laws they passed, and raised the statewide recount filing fee from about $18,000 to $3.5 million. After Stein’s campaign paid up, the newly created Wisconsin Elections Commission said counties could run the paper ballots through high-speed scanners instead of recounting them by hand.
That decision flustered the Greens’ intent of a verifiable recount and led them to sue. Their court affidavits from computer scientists, such as from University of California Berkeley computing and mathematics professor Philip B. Stark, noted the 22,525-vote difference between Clinton and Trump was 0.776 percent of the 2.9 million votes cast. That margin, percentage-wise, is less than the standard error rates of high-speed scanners, he said.238 Dane County Circuit Judge Valerie Bailey-Rihn ruled that even though a hand recount was preferable, she could not force counties to do that. As a result, Wisconsin’s most populous counties—Milwaukee (440,000 presidential votes), Waukesha (237,000 votes), Brown (129,000 votes), and Racine (94,000 votes)—all rescanned their ballots, flouting best practices to verify the vote.
Activists watching the state’s hand recounts tallied nearly eighteen thousand votes that were incorrectly scanned on November 8. But when it was all over, officials said that Trump had increased his victory margin by about four hundred votes—prompting media yawns and ridicule of the Greens. Meanwhile, Arizona-based activist John Brakey noticed and confirmed, contrary to many statements by officials, that one of the most commonly used voting machines in Wisconsin and nationally, ES&S model DS200, used cell phone modems to transmit precinct results to central tabulators. That potential hacking pathway cast doubts on the results, Brakey said. Legal discovery by the Greens also revealed the state did not require the contractors who maintained and programmed the voting machines to take extra security steps. Despite these windows into Wisconsin’s less-than-ideal infrastructure, it was the only state to complete a recount, and no new numbers emerged to change the result.
The state that received the least attention in the recount, Pennsylvania, was the most antidemocratic. “The primary reason Pennsylvania was recounted was to take a close forensic look at the electronic voting machines, since the state is not designed to be recounted,” wrote Bob Fitrakis, an Ohio-based attorney and longtime legal advisor to the Greens on elections, in the Columbus Free Press, where he is editor and publisher.239 Local election integrity activists like Dr. Michelle Zuckerman-Parker, a medical researcher in Allegheny County, where Pittsburgh is located, typified the volunteers who tried to help the Greens. She documented inconsistencies among “data values” in the county and state systems managing voter rolls and tabulating votes, and was hoping a recount might spotlight these lapses.240 While that was the agenda of computer scientists and election integrity activists, the Greens’ grassroots supporters faced an insurmountable task on the ground: submitting recount petitions and notarized affidavits from three voters in each of the state’s 9,158 precincts and laying out $450,000 in filing fees.
As Jonathan S. Abady, the lead lawyer for the Greens’ legal team wrote to Attorney General Loretta Lynch on December 23, 2016, about Pennsylvania, “This year, voters who sought to confirm that their votes had been accurately recorded by requesting recounts were thwarted by a byzantine, unworkable, legal regime.” County boards conducting official vote counts don’t disclose when they’ve finished, Abady noted, which is supposed to trigger a narrow recount filing window. “Two of the state’s largest counties (Allegheny and Delaware) admitted in court that their boards of elections do not comply with the legally mandated process for completing the count. Not even the state’s top election officials knew when the various counties had finished counting the vote…”241
Abady didn’t stop there. He noted how one state court demanded a $1 million bond from ordinary voters filing recount petitions. He said that the need for recounts was prompted by “at least two types of vulnerabilities: susceptibility to malicious interference and poor performance.” Turning to other recount states, Abady cited eighty-seven broken machines “in Detroit alone.” He noted Halderman “has personally hacked into several voting machines as part of a research study, including the optical scan model used in Michigan.” Abady wrote, “FBI Director James Comey’s sworn testimony to Congress that no election machines are ever connected to the internet … is inaccurate,” citing the new “ES&S DS200 model is in broad use in approximately twenty-five states.” He concluded, “The United States should investigate these irregularities and vulnerabilities,” adding the country needed “paper ballot-based systems,” “automatic audits, for every election,” and “adequate funding of our election system to maintain voting machines and train election staff.”242
Needless to say, neither the federal government, nor the Clinton campaign, nor Pennsylvania’s Democratic executive branch leadership including Secretary of the Commonwealth Pedro Cortes, nor its state judiciary bothered to reply to the substance of the Greens’ concerns. As Fitrakis wrote in early January, “U.S. District Judge Paul Diamond states that suspicion of a hacked election in the Quaker State ‘borders on the irrational.’ In prohibiting a presidential recount, Diamond held that there was ‘no credible evidence that any “hack” occurred and compelling evidence that Pennsylvania’s voting system was not in any way compromised.’ Diamond’s ruling came a day after the Washington Post claimed that a secret CIA report found the Russians interfering in the US election electronically in order to hurt Clinton and aid Trump.”243
Still, many voting rights attorneys, even those who have led the fights against GOP anti-voter laws, are more than reluctant to say administrative mistakes and misdeeds should be subject to criminal penalties. They fall under the “bad policy” umbrella, which lawsuits can challenge and legislatures can rectify, these lawyers explain, rather than statutory crimes such as explicit voter intimidation and specific Voting Rights Act violations.244 (While I’ve known and respected these lawyers for many years, I can only wonder aloud if the betrayal by our voting system of American democracy requires its custodians to be held to higher standards and penalties—even if they will be deeply opposed by most public officials.)
By early fall 2017, when this book is being finished, we know a lot more about what Russia did and didn’t do. When Trump finally met Vladimir Putin at a July G-20 meeting in Germany, both perfectly played the part of any longtime politico who never would admit to anything that would undermine their power. They agreed that Russia didn’t interfere in the election or collude with the Trump campaign. (The Justice Department’s Special Counsel, former FBI director Robert Mueller, may have more to say about that narrative.) Russia clearly interfered and had influence, said Timothy Snyder, a Yale historian of early twentieth-century authoritarian regimes—including the Soviet Union. In a mid-June speech, Snyder explained the Russians didn’t need to tinker with voting machinery, even though they were probing those systems, because they found a much more effective way to influence voters: inundate them with propaganda on social media.245
Snyder said we know that Russians hacked the DNC and Clinton campaign emails before spring and summer 201
6. Trump also invited them to do more of it while campaigning, he noted. (That was before disclosures in 2017 congressional testimony that dozens of states were targeted, and the early June publication by TheIntercept.com of a National Security Agency document with more details, such as fake emails sent by Russia to election vendors and local offices. Notably, most actions cited by the NSA were after October 27, 2016, long after voter registration had closed in Florida, Georgia, Michigan, Nevada, North Carolina, Ohio, Pennsylvania, and Virginia.246)
Snyder explained that Russia didn’t have to focus on voting machinery because they had a bigger, more effective strategy. As Bloomberg’s Joshua Green and Sasha Issenberg reported in late October 2016, the campaign’s social media operation targeted Clinton supporters on Facebook and Twitter with negative messaging to discourage them from voting for her.247 These weren’t just traditional political ads that had been diverted online, but as Facebook said in its April 2017 report, “Social media accounts and pages were created to amplify news accounts of and direct people to the stolen data. From there, organic proliferation of the messaging and data through authentic peer groups and networks was inevitable.”248 In other words, Trump’s campaign bombarded swing-state Democrats with political ads and fake news, some of which were based on information stolen in Russian hacks of the DNC and Clinton campaign.249
“The main element of the Russian intervention in the election had to do with gathering political data about tens of millions of Americans, and then using Facebook and other platforms to target fake news to people who were regarded as susceptible, especially in the last weeks before the election, which probably determined the outcome in critical states that were targeted,” Snyder said. “This isn’t to say that there aren’t other reasons, and in my view, good reasons, why people could vote for Mr. Trump. It isn’t to say that Hillary Clinton ran a wonderful campaign either. It’s just to say that in a very close election, that probably made the difference.”250
If Snyder is correct, Russia more than learned the lessons of the Republican playbook. They looked at 2016’s political landscape and found vulnerabilities where targeted interventions could scale. Why mess with Michigan’s 1,600 local election jurisdictions or Wisconsin’s 1,850 election jurisdictions, and their respective computer systems, when they could use social media to target those states’ voters with provocative propagandistic messaging? That tactic was akin to the “honorable state espionage” cited by former CIA and NSA Director Hayden in his October 2016 speech at the Heritage Foundation.251 Strategically, this is no different than any other negative political advertising campaign seeking to discourage the opposing side’s voters. Instead of deluging voters with attack-dog mailings, they used social media platforms like Facebook and promoted propagandistic stories in American right-wing media that drew on information obtained by Russia’s hacking of Democrats.
But let’s step back and grasp the big picture. Whether extreme partisan redistricting, newly restrictive voter ID requirements, paper proof of citizenship requirements, limiting early voting opportunities, moving polling places, repealing Election Day registration, there is a long list of Republican strategies that shave points off of likely turnout by Democratic voting blocs. These tactics are all politically shrewd because they are administratively crude. They take aim widely at multitudes and await the consequences. It appears that Russia followed this same template.
Meanwhile, research since the election addressed some of the anomalies cited by Bonifaz on the eve of the recounts. A study by the University of Michigan’s Walter Mebane Jr., a professor of political science and statistics, and Matthew Bernhard, a PhD computer science scholar, examined the recount data in Michigan and Wisconsin to see if the different voting technologies—ink-marked paper ballots versus electronic touch screens—treated Clinton and Trump differently. “Presumably, if there had been a hack to benefit or harm one candidate, the voting machines would have systematically under- or over-counted one candidate’s ballots more than the other,” they wrote for the Washington Post’s “Monkey Cage” blog in early June 2017. “That didn’t happen.”252
“Our analysis assumes that the recount, when done by hand, accurately counted the votes,” they said, agreeing with the Greens’ methodology. “In brief, we find no evidence that the voting technology favored one candidate more than the other … The tests uncovered nothing suspicious. That supports a conclusion that voting machines themselves were not hacked.”
That analysis put to rest one concern that emerged immediately after the election. However, it didn’t suggest that electronic voting machines weren’t vulnerable. Hackers attending the DEF CON25 conference in July 2017 in Las Vegas “claimed to have found major vulnerabilities or claimed to have breached every voting machine and system present,” wrote Lulu Freisdat, who videotaped their effort. She reported the breached systems included “the Sequoia AVC Edge, currently in use in thirteen states and the AccuVote TSX, in use in nineteen states.”253 Hackers also took “complete control of an e-poll book” and scrambled their files, she said, noting these hacks took from a few minutes to a few hours—another metric about our elections.
But Mebane and Bernhard’s analysis of the Greens’ recount had a bombshell—though not enough to unseat Trump. They didn’t find evidence of hacking, but they did find something else that could have changed the result. “We ran into a different problem in Michigan: only a subset of precincts were recounted,” they said. “Serious problems have been documented in Detroit that potentially could have changed the outcome in the state.”254
Rapoport, too, believed that the aborted recount, reports of spoiled ballots in Detroit, and partisan voter purges facilitated by Crosscheck’s lousy data all “had a cumulative impact that likely exceeded Trump’s 11,000-vote margin.”255
Another postelection study, led by Professor Kenneth R. Mayer of the University of Wisconsin-Madison, found that Wisconsin’s strict voter ID law discouraged 16,800 voters from casting ballots in the state’s two most populous counties. Those suppressed votes were equal to 11.2 percent of those counties’ electorate, leading many observers to conclude that, statewide, the voter ID law could have led to Trump’s nearly 23,000 vote victory.256
So Clinton should have won Michigan and Wisconsin, but that still wasn’t enough to win the presidency.
16
THE ELECTORAL COLLEGE
THE RECOUNTS EXPOSED MORE UNSAVORY FEATURES of American elections. Yet, as has been the case for years, election officials grudgingly accepted these slights as an inevitable part of the process. The recount’s shortcomings joined the list of Election Day impediments compiled by groups like the League of Women Voters, whose post-2016 Wisconsin report cited many incidents of voters being shuffled between polls, confusion over voter ID requirements, and provisional ballots. In a state with millions voting however, hundreds of random victims were seen as an unfortunate but not outcome-changing cost to be tolerated.
Nonetheless, the cumulative toll of a presidential campaign that was widely called one of the “worst ever” kept prompting people to look for a final way to stop Trump. As the recounts churned along, the Republican Party’s members of their state Electoral College prepared to meet in their Capitol buildings to ratify the presidential results. That led to an effort by a group called the Hamilton Electors, named after Alexander Hamilton, who argued that the GOP’s almost-final gatekeepers owed it to their country to reject Trump and pick someone else.
“I am asked to cast a vote on Dec. 19 for someone who shows daily he is not qualified for the office,” wrote Christopher Suprun, a Texas paramedic and Republican elector, for The New York Times’ opinion page. “The election of the next president is not yet a done deal. Presidential electors have the legal right and constitutional duty to vote their conscience. I believe electors should unify behind a Republican alternative.”257
Suprum’s Electoral College brethren did not respond to his call to arms. In fact, the only electors to reject their party’s nomine
e were a few Democrats who abandoned Clinton. That left one final possibility, urging members of Congress to reject the Electoral College’s vote for ratification in its joint session in early January. The last time members of both chambers rose to block the ratification was in 2005. That January, Ohio’s Rep. Stephanie Tubbs-Jones and California’s Sen. Barbara Boxer forced the House and the Senate to return to their chambers for a two-hour debate, where they heard now-familiar complaints about voter suppression. As in 2005, civil rights activists urged the Congressional Black Caucus to take the lead.
“We are writing to you as a member of the Black Caucus to ask you to file an objection before January 6, 2017, when you and your colleagues reconvene to count and authenticate the ill-gotten votes that some electors cast for Donald Trump,” Ruby Sales, Amy Billingsley, and Ann Massaro wrote. “Whether you realize it or not, there is another powder keg that is percolating in Black, Brown, and progressive communities who voted in large numbers for Secretary Clinton only to have their votes stolen and disregarded not only by Republicans but seemingly by Democrats.”258
Their letter cited the seventy-five thousand Michigan ballots lacking votes for president, the “massive non-count of ballots in Milwaukee [that] doubtless contain the tally that defeated Mr. Trump,” and “missing tally from communities of color” in Pennsylvania, among anti-voter actions. Their conviction and determination was laudable, but some facts were not on their side such as how some sixty thousand fewer voters turned out in Milwaukee compared to 2012, and how it was virtually impossible to know what was or wasn’t missing in Pennsylvania because its voting machinery was almost all paperless, including in Philadelphia and Pittsburgh.
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