When the headline reads, “Get over it,” the article should be viewed with a healthy dose of skepticism. CNN published an opinion piece by professor and long time election expert Joshua A. Douglas.
Professor Joshua Douglas begins his opinion piece by describing Donald Trump’s statement claiming millions voted illegally as a “baseless assertion.” Joshua Douglas uses the first two paragraphs to bring in Democrats and let them know that he is on their side. Having completed that task, he goes on to the real point of the article. The headline reads, “Clinton won popular vote, Trump won the election: Get over it.” And here comes the zinger:
Similarly, the recount in Wisconsin, Michigan, and Pennsylvania are harmful because they make people believe something was amiss, with no evidence in support and no chance of changing the result.
First, there actually is information suggesting serious problems. Second, evidence comes during an investigation. Investigations are not conducted after “proof” — they are conducted when suspicion arises.
News that Green Party presidential candidate Jill Stein has requested a recount in Wisconsin, and will likely do the same in Michigan and Pennsylvania, has raised faint hopes among Hillary Clinton supporters that somehow Donald Trump will not become the next president of the United States.
This claim is merely hypothetical. People may want recounts for other reasons. One good reason for a recount is to see the quality of elections since the 2002 Help America Vote Act. By examining the quality, we can find problems and make adjustments in the future — exactly the type of thing we might expect a professor of election law to find interesting and useful.
Professor Joshua Douglas completely misses that point by suggesting, “There is essentially zero chance that the recounts in Wisconsin, Michigan, and Pennsylvania will change Trump’s lead.” To buttress his point that the recount should be halted, he points to the 2000 election:
After a recount — which the US Supreme Court halted by a 5-4 vote — Bush ultimately won Florida by 537 votes, securing the presidency.
Joshua Douglas confuses the words and distorts the facts. Since the Supreme Court “halted” the count, then there could be no “after the recount” by the plain meaning of the words.
EQUAL PROTECTION AND THE 2000 ELECTION
In an earlier article, Professor Joshua Douglas notes:
Most people do not realize that the main legal issue in Bush v. Gore — that Florida’s vote-counting procedure violated equal protection — was a 7-2 decision. The portion of that case that was 5-4 was on the remedy for this constitutional violation, whether to continue to count ballots under a new standard or stop the recount.
The good professor is going to help us to finally “realize” what was most important. To him, it was not the 5-4 partisan decision to stop the recount and hand George W. Bush the presidency — it was the fact that two additional Justices found Equal Protection problems. There was an incredibly high number of spoiled ballots in majority black areas. An early review before the Supreme Court stopped the vote showed problems:
The analysis of 6,000 precincts uses far more definitive data than previous studies and shows a strong pattern of ballot rejection in black precincts that is not explained by socioeconomic differences or voting technology. Similar patterns were found in Hispanic precincts and places with large elderly populations.
That certainly seems like an Equal Protection violation. Black areas were far less likely to have their votes counted than other areas. Those two other Justices recognized this problem. But they were not on board to deny recounts for the very people who suffered from the violation and they were not willing to provide a remedy that allowed counting of white areas in greater percentages than in black areas — that is turning Equal Protection on its head.
There were many glaring problems with the jurisprudence of the five Justices who stopped the vote count. From the beginning, the US Supreme Court had no business taking the case to review a unanimous ruling of the Florida Supreme Court in a traditional area of state law. At the end, the Supreme Court had no business declaring December 12 a hard date upon which vote counting could not continue. In between, the Supreme Court showed its partisan hand many ways as detailed by Vincent Bugliosi in his article, “None Dare Call It Treason.”
In the current CNN article, Joshua Douglas claims:
Yet even if the Court had allowed the recount to proceed, the margin would not have swung by much.
Joshua Douglas links to a CNN article from last year. The linked article reviews the various unofficial recounts after the election. Many of these reviews found that George W. Bush would have won anyway.
Buried in the article, the most comprehensive study showed that Democrat Al Gore would have won a full statewide recount under each and every one of the various standards for “acceptable marks.” This full statewide recount was exactly what the unanimous Florida Supreme Court ordered.
When the US Supreme Court stopped the recount, George W. Bush’s lead had dropped from 537 to 154. The writing was on the wall. The US Supreme Court partisan five handed the election to George W. Bush reverting the vote margin back up to the 537.
OTHER 2000 ELECTION PROBLEMS
In 2000, there were all kinds of problems preventing voters from casting ballots at all. These difficulties would not even show up in a recount — and these problems are greater today than they were in 2000.
The US Civil Rights Commission conducted an extensive review of the 2000 election. While the Commission found voters were disenfranchised within the election, it also found a trail of disenfranchisement preventing people from casting ballots — including the notorious felons list and the failure to register “motor voter” applications:
The Commission found that the problems Florida had during the 2000 presidential election were serious and not isolated. In many cases, they were foreseeable and should have been prevented. The failure to do so resulted in an extraordinarily high and inexcusable level of disenfranchisement, with a significantly disproportionate impact on African American voters. The causes include the following:
(1) a general failure of leadership from those with responsibility for ensuring elections are properly planned and executed;
(2) inadequate resources for voter education, training of poll workers, and for Election Day trouble-shooting and problem solving;
(3) inferior voting equipment and/or ballot design;
(4) failure to anticipate and account for the expected high volumes of voters, including inexperienced voters;
(5) a poorly designed and even more poorly executed purge system; and
(6) a resource allocation system that often left poorer counties, which often were counties with the highest percentage of black voters, adversely affected.
In the current CNN article, Professor Joshua Douglas warns:
Moreover, all of this talk of recounts and election rigging obscures the more important fact about our elections: We impose too many obstacles on voters for no good reason. We need to work harder to eliminate onerous voting laws and make voting easier, not focus on long-shot recounts that provide only false hope.
Joshua Douglas has it half right. We can and we should do both: remove the obstacles and assure the counts are good. A recount would also clear up allegations by Donald Trump, which it seems Joshua Douglas should support.