Consistency on WI Recount

There appears to be news from Wisconsin today that the initial election results were affected by a computer error, hiding some 7 thousand votes for incumbent David Prosser. This changes the math a little bit, putting him ahead by nearly six thousand votes. We'll see if there were other errors across the state in reporting, so the numbers could still move quite a bit.

Regardless of the outcome for the court, I am doubling down on my call for the loser of the election to forgo filing for a recount. A judicially overseen recount of a judicial election is a nightmare scenario for the perceived impartiality of the courts. Judges would be in the position of choosing their coworkers and bosses, inviting an already elite heavy institution to become downright oligarchic. The possibility of recounts is a major bug of the elected judiciary, but not an inescapable one. In Wisconsin's case, Kloppenburg could simply dismiss any evidence of fraud or mistakes, deciding not to file for a recount.

There is a bigger question for Kloppenburg, or any loser of a close election: does a recount secure accuracy of democratic results in elections? I find little evidence for the affirmative. If any real grounds for a recount are present, they could be ferreted out by journalists. The competitive search for shocking stories of fraud and abuse will drive enough inquiry into the matter. Would such an outcome leave the public without recourse? Of course not; political pressure would force any illegitimately elected official from stepping down. Recount procedures could quickly be put in place for the removal of intransigent officials.

Nobody who survived the 2000 election recount and abrupt court-ordered end to vote counting can trust courts to always decide political matters with a modicum of fairness or impartiality. That is precisely the lesson of the political question doctrine. Let political actors sort out the political. Vote counting is a technocratic field, not a suitably legal endeavor. If improprieties exist within the state vote counting apparatus, the legal system should involve themselves insofar as prosecuting offenders. The judicial branch has a few comparative institutional advantages to the political branches, but not when it comes to presiding over elections.