Recount 2016: The Good, the Bad and the Ugly

As recounts in states wind to a close, courts wrap up their legal cases and electors prepare to assemble to formally declare Donald Trump the next president of the United States, what lessons have we learned from the 2016 recount process?

by / December 10, 2016
credit: Shutterstock/Cartoonresource

“Aggrieved” or “not aggrieved” that is the question.

Since Jill Stein finished a distant fourth in the vote count in Michigan, the judicial system finally determined that she was not harmed by the vote and did not have the legal standing to request this statewide recount in the first place. When the Michigan Supreme Court denied Jill Stein’s final recount appeal on Friday night, the recounting of votes, which was suspended earlier in the week by a federal judge, officially ended.

Sure, more rallies and protests are planned, final vote tallies will be recorded in Wisconsin, and court rulings are still planned in Pennsylvania, but the clean-up crews are starting to assemble with federal election deadlines fast-approaching.

In Grand Rapids, Mich., President-elect Donald Trump reiterated his view that the recount attempt was a ploy by Stein to raise money. “I heard a half hour ago, we totally won it. Not that we care about that.”  

Stein’s attorney Mark Brewer said he was disappointed but not surprised by the ruling from what he called “a very partisan court.”

“I think they’re wrong, and they just made up a new standard of law solely for the purpose of this case,” Brewer said of the determination that Stein was not an “aggrieved” candidate. “This is now going to affect every other recount going forward.”

Any Clarity in Three Weeks of Recounts?

Back at the beginning of this post-election process, I offered 10 problems with these recounts and why this entire episode was a bad idea in my Lohrmann on Cybersecurity blog: The Trouble With Recounts in the Name of Hacking. Many of same arguments were used by politicians from the right and left as well as by the judges who ruled in the lawsuits.

Nevertheless, these recount events happened. It is time to move on and try to make lemonade out of these lemons. So, in that line of thinking, what are our takeaways? I know there will be books and white papers and many journal articles written on 2016 recount lessons learned, but here are my initial thoughts.  

I have grouped nine items into three groups of three that I have placed under the headings of “The Good, The Bad and The Ugly.”

The Good

  • Not as bad as Florida 2000. As bad as these recounts were, the results stood up. In historical terms, this recount does not pass the famous Gore v Bush Florida recount of 2000. There are many reasons for this, including the closeness of the vote, the fact that multiple states were involved and the delay in asking for the recount. (In Florida, the election was never called and Gore did not concede until the U.S. Supreme Court ruled.)
  • Voting machines were not hacked. Throughout this recount process in many states (with recount efforts also taking place in Nevada and other states), no evidence of hacking of the vote has come forward. The U.S. Department of Homeland Security (DHS) under the Obama administration, has refuted claims related to hacking poll equipment. [Note: The wider hacking claims surrounding the election and Russian influence is listed separately below under ‘ugly’ — but does not involve the counting of votes.]

The Bad

  • More lawyers please. The amount of money spent on legal fees, attorneys and court fights is staggering. Of course, this is a good item, if you are a lawyer who is in court. But my point is that the legal wrangling, lawsuits and overall arguments are very complex with recounts. Lesson learned: This will not change in the future and could get even worse if the election results were closer, or real fraud or genuine hacking is found in future elections.
  • These recounts did not improve overall trust in the system. Far from improving the trust and integrity of the process, more questions were raised than answered. This article explains why: “prolonging the campaign by seeking a recount breeds unwarranted doubt about the legitimacy of our elections — without any real evidence to back it up.” Nevertheless our current situation can still, “prompt Congress and state legislatures to devote greater resources to election technology.”

The Ugly

  • Hacking has become the new buzzword for everything. This is likely a trend as we head into 2017, with more “maybe was hacked” defenses in every area of life. I am especially interested in the hacking claims involved in these recounts and how the courts dealt with them. For example, I wrote this under item 6 last time: These recounts set up a dangerous precedent for future elections and potentially for many other areas of life where anyone can question any numbers based upon the view “maybe there was a hack — somewhere, somehow. …” Is our new threshold a “potential for hacking?” If we use that litmus test in other areas of life, what can be excluded? 

Thankfully, (federal judge) Goldsmith agreed: “The vulnerability of our system of voting poses the threat of a potentially devastating attack on the integrity of our election system. But invoking a court’s aid to remedy that problem in the manner plaintiffs have chosen — seeking a recount as an audit of the election to test whether the vulnerability led to actual compromise of the voting system — has never been endorsed by any court, and would require, at a minimum, evidence of significant fraud or mistake — and not speculative fear of them. Such evidence has not been presented here.”

I think this point is key, since there are millions of vulnerabilities of all types of computer systems in the world — and an endless number of IoT devices and vulnerabilities are coming soon. No doubt, we can show many ways to hack many devices in labs, and companies must take these matters seriously. Still, to spend millions of taxpayer dollars on recounts in America, was not the best use of our precious resources regarding this endeavor.

My Final Thoughts on Recounts Related to Hacking

As I predicted, this recount process became a significant global side-show that received plenty of attention and international and local media coverage — with thousands of articles and side-stories. For example: the BBC wrote, US election 2016: Could recounts change result?

At this point, most people are worn-out by this election, recounts, related hacking claims and certification timelines. The stock market has already decided that Donald Trump has won, and the rally on Wall Street is setting all-time records.

But I also think that the “potential for hacking” issue has wider implications for other areas of life. The way that the courts dealt with Jill Stein’s original hacking claims can tell us how data breach laws, hacking assertions and hacktivist activities might play-out in the courts in coming years.

Keep in mind that raising possible concerns about the legitimacy of any data can have devastating impacts on the public trust of many institutions and the people, process and technology used. Thousands will show how various devices have been hacked in labs. Hacking is set to take on an even larger role, as the number of alleged real incidents grows.

A lawyer friend once answered a question of mine regarding potential lawsuits in this way: “If it moves … sue it. If it doesn’t move, move it — then sue it.” This legal adage has now moved on to be relevant for elections and recounts and hacking. Next stop — who knows.

And beyond election recounts, I suspect that we may not have heard the last of the line: “Were you aggrieved?”

Especially when it comes to hacking.