## What sort of evidence might Wisconsin require to NOT use a machine recount?

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In hopes of testing whether the output from proprietary voting machine hardware and software was accurate, the Stein campaign has paid the state of Wisconsin a $3.5 million dollar recount filing fee, (plus$400K later), to compare the existing machine counts to hand ballot recounts. However the spirit of hardware/software troubleshooting seems to have run aground of the Badger State's legal system:

The state Elections Commission has ordered the recount to begin Thursday but rejected Stein's request that county clerks conduct the recount entirely by hand. Stein filed a lawsuit seeking an order for a statewide hand recount.

Stein's attorneys argued during a hearing Tuesday evening that the best way to determine if a cyberattack occurred is to check ballots by hand against electronic tabulations from Election Day. State lawyers countered there's no evidence to suggest any attack took place.

Dane County Circuit Judge Valerie Bailey-Rihn refused to issue the order, saying Stein's team failed to show any mistakes or irregularities that would bring a machine recount into question...

What sort of "mistakes or irregularities" would be required by WI Law to bring a machine recount into question? Also, which law or statute would cover this requirement.

Surely the applicable law must address obvious mechanical and symptoms or errors, (i.e. a voting machine emitting sparks or smoke), but it's unclear if it was drafted by legislators who knew much about software bugs, viruses, or exploits.

1The output of some of the voting machines in Milwaukee city look a bit strange to me, that Clinton got exactly the same number of votes in Wards 133 and 134, the digit replication in Wards 270-279. Don't know if I'm seeing confirmation bias or something statistically significant, but 274 was dropped altogether in the 2008 official count. – user2309840 – 2016-12-01T20:20:13.270

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The Wisconsin Elections Commission did publish a Recount Manual for the 2016 Presidential Election.

The basis for requesting a recount:

The basis for requesting the recount. This can consist of a general statement that the petitioner believes that a mistake or fraud was committed in a specified ward or municipality in the counting and return of the votes cast for the office; or more specific grounds, such as a particular defect, irregularity, or illegality in the conduct of the election, may be listed in the petition. The petitioner shall state if this information is based on personal knowledge of the petitioner or if the petitioner believes the information to be true based on information received from other sources. Wis. Stat. § 9.01(1)(a)2.b.

(emphasise mine)

Regarding hand-counting the ballots:

Unless a court orders otherwise, the board of canvassers may decide to either hand-count or use voting equipment to tabulate the ballots. The board of canvassers may also choose to hand-count certain wards, while using voting equipment to tabulate other wards. Wis. Stat. § 5.90(1). If voting equipment is used, it should be programmed to read and tally only the results for the contest to be recounted. Prior to the recount, the filing officer should consult individually with board of canvass members to inquire how each prefers the ballots be tabulated. Based on that informal polling, the filing officer can prepare for the recount. The formal decision on the tabulation method to be used should be made publicly when the recount begins so as to provide an opportunity for candidates or their representatives to object.

From what I infer, it seems like triggering a hand-count would be considered on a case-by-case basis. The petitioner can submit any evidence they can find regarding any "irregularities", whether it's a first-hand account or from third-party sources.

As for the definition, it doesn't seem to state what constitutes "mistakes or irregularities".

The basis for the Wisconsin recount, seems to be that Clinton did worse in counties in Wisconsin that used electronic voting machines instead of paper ballots.

1Just to clarify, since the pretty link obscures the article title: FiveThirtyEight explicitly stated that based on their looking at the data, there appeared to be absolutely no statistical anomalies that they would expect to see if there were voting machine shenanigans afoot – user4012 – 2016-12-01T02:14:40.480

@user4012 Yup, it's only the excerpt, technically, neither Stein nor Clinton claimed that there were any irregularities. The recount is just a double-check of the results. But, thanks for pointing out! – Panda – 2016-12-01T02:16:28.280

3@user4012, such confidence begs the question of whether the sabermetric quants of 538 constitute relevant authorities in the field of bleeding-edge computer crime. Stats certainly can help detect some forms of computer crime, but not all, especially if the crime were specifically tailored (or perhaps evolved) to placate statisticians. This possibility recalls Uri Geller's success with the scholars of SRI. – agc – 2016-12-01T04:30:37.460

4@luweiqi, good answer, but under hand counting, "unless a court orders otherwise" is the crux of the question. What criteria would a court require? Fortunately the Wis. Stat. § 5.90(1) is right next to Wis. Stat. § 5.90(2), which explains it: "The petitioner in such an action bears the burden of establishing by clear and convincing evidence that ... there is a substantial probability that recounting the ballots by hand or another method will produce a more correct result and change the outcome of the election." – agc – 2016-12-01T04:52:44.870

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@agc - It's not that 538's analysts are experts in computer crime. It's that they're experts in analyzing voter demographics. They found no correlation between voting method and votes, once you control for size of the population. It's certainly theoretically possible that there's a very subtle hack in place, but it can't be too subtle or it wouldn't be able to affect the outcome at all.

– Bobson – 2016-12-01T11:56:56.117

1@agc - considering that whoever was notionally screwing with machines in Wisconsin would have had to know what the vote counts in the rest of the country was in order to tailor the WI counts to match, that'd be impossible without a time machine. – user4012 – 2016-12-01T12:14:37.143

@user4012, sorry, I'm confused. The WI counts matched the rest of the country in what way specifically? – agc – 2016-12-02T03:25:23.853

@Bobson, I think the 538 analysis you've linked to is overrated. No room here for a detailed critique, but take 538's last two sentences: "at a time when the number of voters without confidence in the accuracy of the vote count is rising, the burden of proof ought to be on people claiming there was electoral fraud. The paradox is that in our current electoral system, without routine audits, seeking proof requires calling for a recount, which in itself can undermine confidence in the vote." The burden of proof should be on the state of course, to justify the people's confidence with proof. – agc – 2016-12-02T03:52:15.233

@agc - I totally agree. It is the state's responsibility to be transparent enough to reassure people, and many states (especially PA) are not. If recounts help reassure people (like they do for me), I'm all for them. I wish there was more auditing overall. That said, no one should be flinging wild accusations of "hax!" without some amount of hard data (stats, evidence, mass irregularities) to suggest that there could have been any, any more than people should shout "Fire!" in a theatre or make unfounded child-rape accusations to smear someone. – Bobson – 2016-12-02T04:09:09.743

@Bobson, dilution is but partial agreement at best. Transparency does not equal proof, (it's merely a help in proof), and responsibility (voluntary duty) does not equal burden (compulsory obligation). – agc – 2016-12-02T06:48:02.397

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Example of a defect, is something like the butterfly ballot, hanging chad issue that became part and parcel of the 2000 Presidential recount in Florida. Other examples include ballot misprints.

Example of an irregularity is:

Which is possible, but highly, highly unlikely. Other irregularities could be due to weather, closing of poll offices early, lack of ballots, and power outages, machines that break resulting in long lines. These things happen.

An example of criminality is something like the new Black Panther Philadelphia issue: Washington Times

Other criminal activity includes vote buying, posting of false notices, coaching in the polling station, etc.

The problem is that Stein and others are contesting the election not based upon any evidence of wrongdoing, but because they just didn't like the results. 538 blog

The Factcheck.org link you've cited points out Obama's success in Philly was in fact pretty likely, see this map for more details.

– agc – 2016-12-02T04:10:55.310

The 2012 Washington Times article cited as an example of criminality seems devoid of any information regarding crime as such.

– agc – 2016-12-02T05:18:13.857