Attorneys for Green Party candidate Jill Stein will launch a last-minute challenge to Pennsylvania's presidential election results today, and the Hillary Clinton campaign says it will participate to ensure the process is "fair to all sides."
Lawrence Otter, an election attorney working with the Stein campaign, said the effort will begin with voters in selected precincts filing recount petitions, which county election boards are required to honor.
Otter said if those reviews show discrepancies, further legal action could follow, perhaps leading to computer experts seeking digital evidence of hacking.
The deadline for filing those petitions is Monday, Nov. 28.
Monday morning, the Allegheny County Board of Elections said it would postpone election certification until Dec. 12 in order to respond to voter petitions and affidavits requesting voting machine re-canvassing.
Stein has announced plans to seek recounts in three tightly-contested battleground states — Michigan, Wisconsin, and Pennsylvania. Republican Donald Trump won all three states by narrow margins.
In Pennsylvania, Trump carried the state by about 71,000 votes, a margin of just over one percent.
Last week New York magazine reported that a group of computer experts were urging the Clinton campaign to challenge results in the three states, after their analysis showed Clinton got more votes in counties using electronic-voting machines than in those with optical scanners and paper ballots.
One of the scientists, Alex Halderman, subsequently wrote he thought the most likely reason for the anomalous results was polling errors rather than computer hacking, but still thought the returns should be carefully audited.
Otter said the Stein campaign will look for voters in a variety of precincts to seek recounts.
Some are sure to be in Bucks County in suburban Philadelphia, he said where he said the results seem strikingly different from other suburban counties where Clinton did very well.
"Why did Clinton pull out Bucks County by only 2,000 votes while in Chester County she won by 23,000 votes?" Otter said. "In Delaware County, she won by 60,000 votes. In Montgomery County she won by 90,000 votes."
Otter said if recounts show significant discrepancies, "then this becomes much more problematic. If it turns out to be a major discrepancy then you can expect to possibly see an election contest filed in court."
An election contest is different from a recount petition. A contest is a court petition seeking to overturn an election result, and according to veteran election lawyer Gregory Harvey, it must spell out the alleged illegal conduct that requires invalidating enough votes to reverse the outcome. In this case, that would be over 70,000 votes.
A long shot?
It's hard not to take the threat of hacking seriously, given the conclusion of government experts that Russian hackers were behind leaks of Democratic National Committee emails, and Washington Post reports that the Russian government posted fake news online to influence the election. On the other hand, our de-centralized voting system makes it harder to hack, at least according to those who run it.
"Our voting machines are not connected to the internet. They're not wireless. They're not connected to anything other than an electrical outlet in the wall," said Al Schmidt, co-chair of Philadelphia's election board, the City Commissioners. "So it's no more easy to hack into one of them than it is to hack into a kitchen appliance."
So it wouldn't be easy to hack the state's 24,000 voting machines, but there's the possibility of tampering with the counting process. But Schmidt notes audits are done to compare results reported to the state with the election night tallies from a sampling of precincts, about two percent of them statewide.
It's hard to evaluate the computer scientists' argument that there are suspicious patterns in the results, since we haven't seen the evidence.
As for Bucks County, Pennsylvania, maybe the results are strange, maybe not.
If you look at how Clinton performed in the four Philadelphia suburban counties compared to President Obama in 2012, you'll see she did much better in Montgomery and Chester counties, and about the same in Bucks and Delaware Counties, where there were hotly-contested local contests that Republicans won. If you measure popularity by campaign lawn signs, Trump had a clear advantage in Bucks.
Clock is ticking
The biggest obstacle to this getting anywhere may be deadlines. The recount petitions come on the very last day, and if they're designed to generate enough evidence to contest the election, that's going to be a stretch.
Harvey, the election lawyer says the deadline for an election contest, which must spell out the specific conduct that merits overturning the result, is also Monday, Nov. 28. With a compelling case you can always ask the court to make an exception, but they tend to be pretty strict about election law — that thing about not changing the rules after the game is played.
Harvey said Steins' prospects for success are so remote that "raising money to do something in Pennsylvania must be intended only to publicize the Green Party."
Harvey, a widely-respected election lawyer in Philadelphia, is also a Democratic committeeman in center city.
The Clinton campaign didn't respond to my request for a comment.
Campaign attorney Mark Erik Elias said in a statement over the weekend that the campaign had "not uncovered any actionable evidence of hacking or outside attempts to alter the voting technology," but that it would participate in Stein's recounts "to ensure the process proceeds in a manner that is fair to all sides."
Officials of the Pennsylvania Department of State, which governs elections in the commonwealth declined a request for comment last week.