Days after ordering a recount, an Obama-appointed federal judge in Michigan has ended Green Party presidential candidate Jill Stein’s efforts in Michigan, one that Stein acknowledged included zero chance of changing the outcome of the 2016 presidential election. Stein now says she will appeal.
Federal law requires the Electoral College to be ready to cast its votes to elect the next president by December 19, 2016. Stein sued on December 2, challenging the pause required by Michigan law as unconstitutional, under which a recount could not begin until December 7—two days after the state canvassing board denied her objections to their certifying the result.
U.S. District Judge Mark Goldsmith of the Eastern District of Michigan had originally granted a temporary restraining order (TRO)—the most extreme form of judicial action—ordering state officials to begin the recount on December 5.
Michigan and the Michigan Republican Party filed an emergency appeal, and the next day, the TRO was upheld in a 2-1 decision by the U.S. Court of Appeals for the Sixth Circuit. (Of the two judges voting to affirm the lower court, one was appointed by Bill Clinton, the other by Barack Obama.)
Judge David McKeague vigorously dissented, writing:
The district court justified its decision by concluding that Stein had shown “a likelihood of success on the merits” of the claim that the two-day waiting period could result in a violation of the First Amendment right to vote, with even identifying any factual basis for Stein’s allegation that she was aggrieved on account of fraud or mistake.
McKeague noted that the lower court had acknowledged that theoretically there might be the mere “potential” for some sort of fraud perpetrated by a computer hacker—again with no evidence.
Thus, McKeague continued, the TRO was granted in a “manifest display of partiality and overreach.” He then quoted Chief Justice John Roberts’ dissent from the same-sex marriage case Obergefell v. Hodges, where Roberts wrote, “Astounding!” adding, “Just who do we think we are?”
The federal courts hearing Stein’s case speculated that since Michigan courts had not ruled that candidates lack standing to assert the supposed rights of voters of another state, they would regard the allegations in this suit as claiming a personal injury sufficient for a federal court to weigh in.
But the two-judge majority on the panel hedged their ruling by adding, “If, subsequently, the Michigan courts determine that Plaintiffs’ recount is improper under Michigan state law for any reason, we expect the district court to entertain any properly filed motions to dissolve or modify its order in this case.”
Since there was a parallel lawsuit in state courts at the moment, the Michigan courts immediately responded by ruling that there is no such right under state law. So the trial court then dissolved (i.e., rescinded) the TRO, and the recount ended as quickly as it had begun.
Judge Goldsmith ruled that the “plaintiffs have not presented evidence of tampering or mistake. Instead, they present speculative claims going to the vulnerability of the voting machinery—but not actual injury.”
President-elect Donald Trump defeated Hillary Clinton by 10,704 votes in Michigan. There are no credible allegations that any sort of recount would actually reverse the outcome of the election. Even if there were, this would not confer standing on Stein to seek a recount, since she received only one percent of the vote in Michigan, so no court decision would result in her winning the state’s 16 Electoral College votes.
Stein said that she was, instead, pursuing the recount as a form of audit so that Michigan citizens could have the satisfaction of knowing whether the election results were precisely accurate, giving them confidence in the electoral system.
That is not the role the Constitution assigns to federal courts. In Article III, the Supreme Law of Land confines the “judicial power” to deciding cases or controversies in which (1) the plaintiff has suffered a distinct and concrete personal injury (separate from society at large), (2) that can be fairly traced to the defendant, and (3) which the court can remedy if it grants the requested relief. Thus, the Constitution does not empower courts to indulge Stein’s assertion of Michigan voters’ rights; Stein can sue over some injury she has suffered that a court could fix, but not the alleged injuries of others.
Even Goldsmith—a judicial activist appointed by Barack Obama—acknowledged this. “A recount as an audit of the election,” he wrote, “has never been endorsed by any court.”
Stein’s lawyers say they are appealing the decision, but as of the filing of this report, no additional papers have been filed either with the trial court or the appeals court.
The case is Stein v. Bradshaw, 2:16-cv-14233 (E.D. Mich.).
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.