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Constitutional Lawyer: It’s an “Outrage” That Judge Halted Michigan Presidential Election Recount

StoryDecember 08, 2016
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On Wednesday, a federal judge ordered Michigan’s Board of Elections to stop the state’s electoral recount. U.S. District Judge Mark Goldsmith said he would abide by a court ruling that found that former Green Party presidential candidate Dr. Jill Stein could not seek a recount. Goldsmith concluded, “A recount as an audit of the election has never been endorsed by any court.” Stein has pledged to continue to push for a recount. Michigan is one of three battleground states where Stein had demanded a recount. The other two states are Wisconsin and Pennsylvania. President-elect Donald Trump narrowly defeated Democratic presidential contender Hillary Clinton in all three states. For more, we’re joined by John Bonifaz, attorney and political activist specializing in constitutional law and voting rights. He was one of a group of leading election lawyers and computer scientists calling for a recount in Wisconsin, Michigan and Pennsylvania.

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This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: On Wednesday, a federal judge ordered Michigan’s Board of Elections to stop the state’s electoral recount. U.S. District Judge Mark Goldsmith said he would abide by a court ruling that found that former Green Party presidential candidate Jill Stein could not seek a recount. Goldsmith concluded, quote, “A recount as an audit of the election has never been endorsed by any court.” Stein has pledged to continue to push for a recount. Michigan is one of three battleground states where Stein had demanded a recount. The other two states are Wisconsin and Pennsylvania. President-elect Donald Trump narrowly defeated Democratic presidential contender Hillary Clinton in all three states.

The recount has faced hurdles from the outset. In Pennsylvania, the recount must wait at least until a federal court hearing on Friday, just four days before the December 13th federal deadline for states to certify their election results. In Wisconsin, the recount is more than 70 percent complete. Clinton has gained just 82 votes on Trump, who won the state by more than 22,000 votes. Meanwhile, in Florida, three voters have sued to demand a hand recount of the paper ballots, alleging the presidential election was skewed by hacking and malfunctioning voter functions—voter machines. Trump was declared the winner of Florida by more than 112,000 votes.

AMY GOODMAN: To talk more about the recount, we’re joined by John Bonifaz, attorney, political activist, specializing in constitutional law and voting rights, one of a group of leading election lawyers and computer scientists calling for that recount in Wisconsin, Michigan and Pennsylvania. Bonifaz is founder of the National Voting Rights Institute and co-founder and president of Free Speech for People.

Welcome to Democracy Now!

JOHN BONIFAZ: Thank you, Amy. Thank you, Nermeen.

AMY GOODMAN: So, talk about the latest, what’s happened in Michigan, the halting of the recount.

JOHN BONIFAZ: Last night, a federal judge halted the recount on the grounds the state appeals court ruling should stand, which found that Jill Stein, who’s the presidential candidate seeking the recount in Michigan, is not an aggrieved party. This is a misreading of the state law. It’s an outrage that the voters of Michigan will not have their votes properly counted. You know, the fact is, Amy, that in this country we do not have mandatory audits in most states for verifying the vote. We’re led to believe that the machine tallies on election night is what the outcome actually was, and we do not look at the ballots. Seventy-five percent of the electorate in this country uses paper ballots, but we never look at those ballots. And that’s what was starting in the state of Michigan. We were doing a hand count in the state of Michigan. It’s been halted. And now we have 75,000 blank votes for president that will never be reviewed, with a 10,000-vote margin. It’s an outrage for our democracy that we’re not counting the votes.

AMY GOODMAN: Can it be appealed?

JOHN BONIFAZ: The problem here is that it’s going to be appealed to the Michigan Supreme Court. This is a partisan decision made by the state appeals court. And these are judicial elections in the state of Michigan, and there are partisans on the Michigan Supreme Court. So, while that appeal is pending, you know, I think it’s unfortunate that they may not take it up on a timely basis.

NERMEEN SHAIKH: Well, John, in Wisconsin, where the recount is almost 70 percent complete, Clinton has just gained 82 votes on Trump.

JOHN BONIFAZ: Yes, but it’s very important to note here that while some counties have agreed to hand-count the ballots, other counties are not. They’re feeding the ballots through the very same machines that gave us the tallies on election night. Ron Rivest, a leading computer scientist from MIT, says that’s like going to the same doctor for a second opinion. It makes absolutely no sense to feed those same ballots through the machines and tell us that they’re recounting the votes. What we needed in Wisconsin was a full statewide recount of all the ballots, hand-counted. And there are other systems in the state of Wisconsin, unlike in Michigan, that don’t have any paper ballots. They’re electronic voting systems. And they also exist in Pennsylvania. And these systems have been proven to be hackable and vulnerable for our overall integrity of our process.

AMY GOODMAN: Last month, Democracy Now! spoke to leading cybersecurity and privacy researcher Bruce Schneier about the recount in Michigan, Wisconsin and Pennsylvania.

BRUCE SCHNEIER: There are anomalies in the results that seem to correlate with voting machine type. Now, that is a red flag for hacking and something we should look at, and we should definitely research this. My guess is it isn’t. My guess is there’s some confounding variable that the machine type is correlated to demographic in some way. But we don’t actually know until we do the research. My worry right now is the recount. That process was designed decades ago, when it meant counting the ballots slower and more carefully. And it didn’t mean looking at the voting machines for forensic evidence of hacking. So I’m not convinced that even after this recount we’re going to know more.

AMY GOODMAN: That’s privacy researcher Bruce Schneier. John Bonifaz?

JOHN BONIFAZ: He’s absolutely right that we need to be concerned about this, which is why, tomorrow in Pennsylvania in federal court, Stein’s attorneys are going before a judge to make the case why voting machines should be examined. These election laws have been written long before these voting machines appeared on the scene. These voting machines appeared after the Florida 2000 election debacle. Private voting machine companies sold these systems to states throughout the country. And now they’ve been banned in many states. California did a top-to-bottom review of electronic voting systems and other voting systems and determined that these particular systems, voting machines where you touch on the screen your choices for president or any other office, that they in fact are vulnerable to be hacking, unreliable, untrustworthy and should be banned altogether in the state of California. Yet Pennsylvania still uses them for most of their counties. Wisconsin uses them, as well, for some of their counties. And he’s absolutely right that what we need when we engage in a recount is an examination of those machines. So far, that has not been granted. But that’s exactly why there’s a federal court hearing tomorrow on this.

NERMEEN SHAIKH: Well, Donald Trump’s senior adviser, Kellyanne Conway, dismissed the recount efforts during an interview last month on Fox News.

KELLYANNE CONWAY: Their president, Barack Obama, is going to be in office for eight more weeks, and they have to decide whether they’re going to interfere with him finishing his business, interfere with a peaceful transition, transfer of power to President-elect Trump and Vice President-elect Pence, or if they’re going to be a bunch of crybabies and sore losers about an election that they can’t turn around.

NERMEEN SHAIKH: That’s Trump’s senior adviser, Kellyanne Conway. So, John Bonifaz, can you talk about how Trump has been responding to this recount effort?

JOHN BONIFAZ: The Trump campaign or Republican Party has showed up in every single one of these states to stop these recounts. You know, Nermeen, when I was involved in Ohio in 2004 in the recount there, the election officials in some parts of the state were friendly, and others, they were resisting the recount in Ohio. But the Bush campaign and the Republican Party never showed up. They weren’t involved in trying to stop that recount. That’s very different here. The Michigan attorney general and the Republican Party were the ones who pushed for the stopping of the recount in Michigan. The Wisconsin Republican Party has pushed to stop it in Wisconsin. And in Pennsylvania, the Trump campaign and Republican Party are showing up in federal court tomorrow to try to stop this case from going forward.

What are they afraid of? What are they afraid of why we’re going to count the votes and properly verify the process? In any functioning democracy, we should verify the vote. And it amazes me that we would want to have a cloud go over this election and continue into this next presidency without verifying the vote. We should be entitled, as voters, to ensure that the integrity of our process is protected. You know, there are two explanations for what happened on Election Day. One explanation is there was a huge hidden subset of voters who lied to the pollsters or chose not to respond to the pollsters, and they showed up on Election Day. That’s believable or not believable depending on where you sit, but it is one explanation. Another explanation, equally as believable or not believable, is that the election was compromised. And we ought to engage in verifying the vote to determine which occurred. The people of the United States have the right to know that.

NERMEEN SHAIKH: Well, there’s a third explanation that people give—namely, that there are a number of people who came out to vote who had not voted before, so they weren’t even contacted by pollsters.

JOHN BONIFAZ: You’re absolutely right. There was voter suppression that occurred prior to the election. But those who may have shown up and didn’t get contacted by pollsters, that is an explanation. That’s part of what I suggest may have been the hidden subset of voters. But we don’t know, and we will never know, if we don’t verify the vote, which of the problems occurred. And we also know there was serious concern at all levels of the United States government about foreign interference in our elections leading up to Election Day. And then somehow we decide we’re going to move on and not verify the vote after this election. It’s amazing.

AMY GOODMAN: You were one of the main figures who pushed Jill Stein to do this recount. Some have criticized it, saying, “Why are you just choosing the states where Hillary Clinton lost?” The Clinton campaign is supporting here what you’re doing. Why?

JOHN BONIFAZ: These were the three states with the closest margins of victory for Donald Trump. They were the three states where all the polls showing, leading into Election Day, would have a different result than was stated on election night. And I think, you know, if we had mandatory audits throughout the country, that would be far better. We ought to audit every election at every level throughout the country. But these were the three states that were most concerning, given what had happened on election night. You know, I think the Clinton campaign should have come in and asked for these recounts. I’m congratulating the Stein campaign for having the courage to do that. But I think the Trump campaign should show up and support these recounts. We all, as Americans, ought to want to verify the vote.

AMY GOODMAN: And finally, you just heard our conversation with the faithless elector. Overall, what would make you rest most easily when it comes to voting and how we choose our president?

JOHN BONIFAZ: I think we need a lot of reforms to protect our democracy. The faithless electors is an important move that Mr. Suprun and others are making to vote their conscience. But it raises the other question of why have this antiquated Electoral College that allows somebody to become president when he was the loser to the popular vote. We have somebody who won 2.7 million more votes than the declared winner. And, you know, this is—we need to abolish the Electoral College. We need to get big money out of politics. We need to deal with gerrymandering. We need a lot of improvement. All hands on deck for fighting for our democracy.

AMY GOODMAN: John Bonifaz, I want to thank you for being with us, founder of the National Voting Rights Institute, co-founder and president of Free Speech for People.

A very happy birthday to Carla Wills!

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