As is widely reported now, Jill Stein's campaign is requesting recounts in two states (and likely soon a third). Ideally, the recounts will closely (or exactly) match the reported totals, and the country can move on, knowing that Trump did, in fact, win those states, even if it's by a very small margin.

It's also possible that the recounts will find some significant but non-systematic issues, such as a particular precinct's votes being accidentally recorded twice. It's feasible that there's enough of these to change the result in the state if every correction favors Clinton, but as long as the recount is done in time, the "what happens" is straight forward: The Democratic Electors in that state will cast their votes for Clinton, instead of the Republican ones for Trump.

However, I don't know what could happen if there's evidence of major, systematic problems that make it impossible to determine what the actual vote for a given state was. As a hypothetical example, what if it's discovered that every Sequoia voting machine in PA reported exactly 725 votes for Trump and 400 for Clinton, regardless of how many votes were actually cast? Or someone "misfiled" ballots in all-optical scan Michigan, and now a portion of the state's vote is just gone?

In other words, what if it becomes impossible to say who won a state? Obviously, if it's attributable to a human, they will be tried and punished according to their intent and culpability, but that won't get back the missing votes. Is there precedent for anything like this?

  • My guess it's that it's the same thing as if a recount doesn't complete on time. If they can't say who won the state, then they can't submit their electoral votes to Congress or if they do, Congress can choose not to accept them. I don't know definitively if that's the case though, so I leave this up to other answerers. Nov 27, 2016 at 6:17
  • 2
    @KDog - I'm not sure what assertions you're referring to. The only definite fact I presented is that a recount was requested, which I really hope you're not questioning. The rest of the question is clearly(?) hypothetical situations used to illustrate my point, not claims of anything that actually happened.
    – Bobson
    Nov 27, 2016 at 23:02
  • @bobson it's the "it's possible" and "it's feasible" sentences. But if you cast the exercise as a hypothetical no problem at all. Don't get the Sequoia and other example to tell the truth or why they are needed.
    – user9790
    Nov 27, 2016 at 23:16
  • If one state becomes in doubt and unresolvable, the winner will still have 270 electoral votes, so the outcome will remain unaffected. If 3-4 states become in doubt and unresolvable, enough that the winner no longer has 270 electoral votes, the US House of Representatives gets to pick, and it's likely they will choose their own party's candidate.
    – J Doe
    Nov 29, 2016 at 19:30

1 Answer 1


Wisconsin law has an answer. Although other states likely handle some details differently, this case is illustrative of what can happen when the validity of a vote is seriously questionable.

The Vote will be Set Aside

If the recount reveals systematic error resulting from fraud or an error of the law, the courts can have the vote set aside. This can be done, even if it isn't suspected that the results of the election would have changed. This prevents the vote from being actionable.

See: McNally v Tollander. In this case, the courts found that 40% of eligible voters had been refused the ability to vote in a county election. The court set aside the election:

Because we hold that the failure to provide ballots to forty percent of the voters by itself requires that the election be set aside, we need not consider whether the several other defects involved mandatory provisions that would provide additional bases for setting aside the election.

If the errors are not systematic, than before a vote is set aside it must be shown that the errors could reasonably have resulted in changing the outcome of the election. From Carlson v Oconto County:

"[a]n election honestly conducted under the forms of law ought generally to stand, notwithstanding individual electors may have been deprived of their votes, or unqualified voters have been allowed to participate."

A Special Election Will be Held

What happens once the vote is set aside? A new one is conducted. Wisconsin calls these special referenda.

The existing case law doesn't involve federal elections. So, there is some extension of the previous cases that is necessary. My impression is that such an election would have to take place before any electors representing Wisconsin could participate in the electoral college.

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