Judge rejects Stein's request for hand recount

Madison — Green Party candidate Jill Stein paid $3.5 million Tuesday to clear the way for Wisconsin's presidential vote recount but had a judge reject her lawsuit to require all Wisconsin counties to do the recount by hand.

Dane County Circuit Judge Valerie Bailey-Rihn said the effort to force the hand recount — which was backed by Democrat Hillary Clinton’s campaign — did not meet the state’s legal standard for prohibiting the use of machines in the recount, saying that the two campaigns did not show a hand recount, though more thorough, was necessary or show there was a clear and convincing evidence of fraud or other problems.

Bailey-Rihn said there were good reasons to do a hand recount but no legal basis for her to mandate it.

"I follow the law. That's who I am despite my personal opinions," said Bailey-Rihn, who was elected to the bench last spring. "It's (the counties’) decision. It's their discretion. I may disagree with it … but I must follow the law."

Debbie Greenberger, an attorney for the Stein campaign, said she was uncertain whether their side would appeal but said she hoped county clerks would heed the judge’s praise for a hand recount even though Bailey-Rihn did not mandate it.

"We hope the county boards will take the judge's strong statement to heart," Greenberger said.

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State officials said there was no legal basis for forcing counties to use a hand recount since there was no evidence it was better than electronic tallies in this case and would delay the process for the counties that weren't already planning to count ballots by hand.

"Asking (counties) to retool their plans fewer than two days before the recount is set to begin would (create) additional burdens and could delay the recount's end date — putting at risk whether Congress will honor Wisconsin's slate of presidential electors," the state Department of Justice argued in a motion.

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The Stein campaign brought forward a series of experts in statistics and computer science who argued for a hand recount by describing a series of hypothetical ways that computer hackers might reprogram voting machines.

"I am strongly of the opinion that a hand recount is going to provide a more accurate result," University of Michigan computer scientist J. Alex Halderman said.

In all but one case, the experts called by Stein acknowledged that they had no evidence that any hacking had happened. The one exception was testimony by University of California-Berkeley's Philip Stark about a statistical analysis that found unusual patterns in the digits of vote totals reported in certain smaller election wards in Wisconsin. Those patterns are not proof of any problem with the election, however.

State officials initially estimated the cost of the recall at $1 million but increased the amount after counties gave the state their own more detailed estimates of what it would cost in their jurisdictions. As the cost increased this week, independent candidate Roque "Rocky" De La Fuente said Tuesday he would not be paying part of its cost and participating in it.

An analysis by the Milwaukee Journal Sentinel found wide variance in those county cost figures, which averaged $1.31 to recount each vote cast around the state.

Tiny Northwoods' Iron County is estimating it can do the recount for 20 cents a vote, while neighboring Oneida County is estimating it will cost $8.46 per vote cast there to do the recount.

"We tried not to inflate our cost," said Milwaukee County Clerk Joe Czarnezki, who estimated per vote costs in his area at almost exactly the statewide average. "But it wouldn't surprise me if people erred on the side of overestimating costs rather than underestimating them."

Under Wisconsin law, the Stein camp will get a refund if the recount costs less than expected and will have to pay more if it costs more. But that money might be difficult to raise once the recount is done.

Stein, who drew more votes in Wisconsin than Clinton's losing margin in this state to Republican President-elect Donald Trump, criticized the cost of the recall Tuesday but paid it, ensuring the statewide recount would begin on Thursday.

"We stand by our commitment to verify that the vote in Wisconsin was accurate and secure and this exorbitant cost will not deter us," Stein said in a statement. "While this excessive fee places an undue burden on our efforts, we are committed to paying this cost in order to ensure that the voting in Wisconsin was accurate."

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There can be good reasons for at least some of the variance in costs from county to county. In Iron County, clerk Mike Saari said it will be cheaper to recount the presidential vote there because his staff just conducted a recount of a local district attorney race and did some checks for that effort that won't have to be repeated.

"I've done all the preliminary work," Saari said.

The state Elections Commission said it would only charge $3.5 million initially to Stein, leaving off an additional $400,000 in county costs that should have been added to the statewide estimate but were dropped because of a spreadsheet error.

The Elections Commission agreed Monday to conduct the recall if the money is paid but was sued by Stein after the agency declined to require the hand recount in all counties.

It will be a race to finish the recount in time to meet a daunting federal deadline, and the lawsuit could have delayed the process.

Stein filed a lawsuit Monday in Pennsylvania to force a recount there and her supporters began filing recount requests at the precinct level in the Keystone State. Stein — who received just a tiny piece of the national vote — also plans to ask for a recount in Michigan on Wednesday.

Citing the results of a 2011 statewide recount that changed only 300 votes of 1.5 million, Elections Commission Chairman Mark Thomsen, a Democrat, said Monday this presidential recount is very unlikely to change Republican Donald Trump's win in the state.

"It may not be 22,177," said Thomsen, referring to Trump's win over Democrat Hillary Clinton in the vote count. "But I don’t doubt that the president-elect is going to win that."

Stein was willing to pay for the recount of Wisconsin's election to make sure that the election wasn't rigged in some way against Clinton.