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As reported, the Wisconsin Elections Commission has accepted Jill Stein's petition for a recount of this year's presidential election.


In a NBC article, it states:

In addition, Wisconsin officials would need to scramble to finish the recount by the federal Dec. 13 deadline.

The article also quotes Wisconsin Election Commission's Administrator Michael Haas saying:

"The recount process is very detail-oriented, and this deadline will certainly challenge some counties to finish on time."


So, what will happen if the recount can't be completed by Dec 13 since the electoral college votes on Dec 19?

  • Ultimately, the federal Constitution makes it the job of the State Legislature to appoint electors by December 13th (this year). Presumably, the federal government could take legal action against any state that fails to do so. – barrycarter Nov 27 '16 at 22:15
  • 1
    Look for the highly authoritarian GOP that controls the entire state to drag their feet as much as possible on the process, regardless of what they think the outcome will be. – PoloHoleSet Nov 28 '16 at 17:18
  • By itself, the inability of Wisconsin's electors to vote wouldn't change the outcome of the election, since Trump would still have 296 electors. The interesting question is: What happens if all three of the contested states (WI, MI, and PA) can't finish the recount in time, since this would bring Trump's total down to 260. – dan04 Nov 30 '16 at 6:28
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As per the Milwaukee Journal Sentinel:

Perhaps the most important deadline is Dec. 19, when electors around the country must meet to cast their Electoral College votes, said Edward Foley, an expert in election law at Moritz College of Law at Ohio State University.

"That is a hard deadline and if a state were to miss that deadline, it would be technically in jeopardy of not having its electoral votes counted," he said.

The deadline for completing a recount is thirty-five days after the election, which is December 13th this year. The electors actually vote six days later, on the 19th. If they don't send the electoral college votes on that day, then Congress isn't required to accept the electoral votes from that state.

Of course, it is a Republican Congress and Wisconsin went for the Republican candidate, so they might offer more leeway than they would for a candidate from another party.

If all three recount states fail to send in their electoral college votes by the deadline, it is possible that there won't be enough electoral votes to make a majority. If neither candidate gets 270 votes, the election goes to Congress with the top three vote getters in the electoral college. Absent any faithless electors, that would be Donald Trump and Hillary Clinton.

With a single faithless elector refusing to vote for Trump, Michigan (16 electoral votes) and Pennsylvania (20) failing to submit electoral votes would leave Trump with 269 electoral college votes. With seven, Wisconsin (10) and Pennsylvania would be sufficient. With eleven, Wisconsin and Michigan. And faithless electors would allow a third candidate to be considered, perhaps someone that could get Republican votes in Congress.

Recounts taking too long makes the unlikely prospect of faithless electors more feasible. It would currently take 37 to throw the election to Congress. Or if the 232 Clinton electors join with 38 or more Trump electors, they could pick a compromise candidate. However, the only time that that many faithless electors existed, it was because their candidate died. Other than that, the next largest numbers of faithless electors were for the vice-presidential candidates. But if one or more Trump states fails to vote at all, fewer faithless electors are required to throw it to Congress.

In Congress, if the third option were to be more palatable to select Republicans, they could join with Democrats to choose that person. Of course, Trump would still have the inside path. There are so few states where the Democrats are even close to having enough votes to flip the state. Their large leads in California and New York are wasted in a vote by states.

Note that this is all really unlikely. The states will almost certainly all finish their recounts on time and only a scattered few electors will be faithless. Even if the vote did go to Congress, the House would almost certainly pick Trump. Particularly with people like DeVos and Priebus part of the administration.

  • 1
    If a state fails to submit electors then shouldn't it change the number of votes needed to get a majority? E.g., if Pennsylvania (20 votes) does not submit electors, wouldn't the majority be 260 instead of 270? – SJuan76 Nov 26 '16 at 19:59
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    @SJuan76 No. It's a majority of the whole number of electors, not a majority of the electors who vote. – Brythan Nov 26 '16 at 23:02
  • Say hello to President Ryan! – PoloHoleSet Nov 28 '16 at 17:19
  • @SJuan76 is correct: it's a majority of the appointed electors. If the state fails to appoint any electors, then the number of appointed electors will be smaller, as will the number required to constitute a majority. – phoog Nov 30 '16 at 6:34
  • @phoog No, that is not correct. – Brythan Nov 30 '16 at 13:58
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You guys missed something. The number 270 is not engraved in stone. A simple majority of electoral votes is required. So if Wisconsin cannot certify its results by the 19th, Wisconsin's electoral votes are excluded from the total needed for majority. So the number becomes 260, instead of 270, which would still elect Donald Trump as president.

  • if Pennsylvania, Wisconsin and Michigan all were unable to certify their results, Trump still wins by majority. – David Spurlock Nov 28 '16 at 19:25
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    Article II, section 1: "The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed" – Mark Nov 29 '16 at 1:38
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    @Mark if a state appoints no electors then the number of appointed electors will be smaller. – phoog Nov 30 '16 at 6:35
  • This is not correct. Appointed in this case means allocated. Wisconsin is allocated 10 electors. Whether or not Wisconsin returns votes from a slate of electors, the requirement remains 270 regardless. – Brythan Nov 30 '16 at 14:00
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    @Brythan how does "appointed" mean anything different in the 12th amendment and in the third paragraph of article 2 than it does in the second paragraph of article 2? – phoog Nov 30 '16 at 14:26
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According to Wisconsin state law 9.01(1)(ar)3. the recount has 13 days to finish to be given to the Board of Canvassers

Returns from a recount ordered by the commission shall be transmitted to the office of the commission as soon as possible, but in no case later than 13 days from the date of the order of the commission directing the recount. The commission chairperson or the chairperson's designee may not make a determination in any election if a recount is pending before any county board of canvassers in that election. (Ed note. meaning the 13 days are not up and no recount result has been filed.) The commission chairperson or the chairperson's designee need not recount actual ballots, but shall verify the returns of the county boards of canvassers in making his or her determinations.

In other words, after the 13 days have elapsed, the Wisconsin Electoral Commission is required to certify the returns that have been made, i.e. the original results.

  • 1
    I'm not sure your interpretation is correct. Or at least, it's missing a step that needs to be explicitly called out. As I read it, if there's a recount in process, then they can't "make a determination" of the result until it's done. I'm not sure how you jump from there to "After 13 days, it has to certify the original results". Is it supposed to be "After 13 days, if the recount hasn't produced a final result, it's too late and therefore is terminated without results; at which point there's no longer a recount in process and the commissioner must certify the originals"? – Bobson Nov 27 '16 at 6:36
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I read that to mean the counties must provide a result within 13 days to the commission, period. The commission can make a determination on the recount any time on or before the 13th day as long as all counties have submitted their results, but not before they have. If they fail to submit all results from all counties, the recount effort failed, leaving the original count in place.

  • I think you meant to add that as a comment to my response. I had exactly the same reading. The results have to be verified one way or another by the 13th day after the recount commences. – K Dog Nov 28 '16 at 18:58
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The Twelfth Amendment specifies that the winner must have a majority of the electors appointed. If states fail to appoint electors due to a recount, those states' electoral votes will not be counted, but then it's as if those states' electoral votes don't exist at all because they failed to appoint electors. Even if this happened in Wisconsin, Michigan, and Pennsylvania, Trump will still have a majority of the electoral votes at 260-232. Stein is wasting people's time and money.

0

To make one addition point, once the combined session of the United States Congress meets on Jan. 6th, and accepts or possibly objects to electoral college voters or how ever else the President and Vice President vote are counted, it's done. There is no appeal to the Supreme Court or any other method of over turning the combined decision of the combined congress.

0

If all any or all three state are not finished recounting by the deadline then their votes are also not part of the Electoral College majority. Trump still gets the majority. For example, if all three are held up, the new number becomes 247 to win. Trump wins 260-232. This same thing came up in 2000 with Florida. If Florida would have not voted, Gore would have won 267-246. Stein would have to petition for a recount in more Red States and knock out another 29 votes to accomplish a Hillary win. By themselves, Florida or Texas (Though if I read it correctly, Texas' deadline was the 15th) would do it but by doing this, she also exposes herself.

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The House and Senate can challenge electors under 3 USC Code 15. So even in the event of an Elector "flipping" the election, given death threats have been made to electors this would be grounds to use this code to nullify said elector's vote. Under no scenario does Hillary win unless all three states flip in her favor prior to the EC meeting, which just is not going to happen. Jill Stein has raised money to fill her coffers and just missed a deadline she claims she had no idea about, which raise questions again as to what she is really going to do with the money. That deadline for voter initiated recount (3 affidavits per precinct) was the 21st, not today. Who here believes her lawyers were not aware of this? And yet she still raised money based on this premise. She has filled her coffers with the hard earned money of voters and did so under false pretense.

  • I don't know where you're getting the 21st from. The law in question says "20 days after the date of the primary or election". – Bobson Nov 30 '16 at 13:10

protected by Bobson Nov 30 '16 at 12:23

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