CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/26/2023 1

Swing-State Recounts 

in the 2016 Presidential Election 

Great America PAC v. Wisconsin Elections Commission 

(James D. Peterson, W.D. Wis. 3:16-cv-795), 

Stein v. Thomas (Mark A. Goldsmith, 

E.D. Mich. 2:16-cv-14233), and 

Stein v. Cortés (Paul S. Diamond, E.D. Pa. 2:16-cv-6287) 

Following the 2016 presidential election in which a candidate 

earned more votes in the Electoral College than the candidate who 

received the most popular votes, a minor-party candidate sought 

recounts in the three states that the Electoral College victor won by 

the smallest margins. The matter was litigated in state courts and in 

federal courts in the Western District of Wisconsin, the Eastern 

District of Michigan, and the Eastern District of Pennsylvania, with 

mixed results for the minor-party candidate’s litigation efforts and 

no change in the Electoral College outcome. The Pennsylvania case 

ended with a settlement agreement requiring a change in voting 

technology and a payment of attorney fees. 

Subject: Recounts. Topics: Recounts; election errors; voting 

technology; matters for state courts; laches; intervention; recusal; 

case assignment; Electoral College; attorney fees. 

In the 2016 presidential election, Donald Trump earned 306 electoral votes, 

and Hillary Clinton earned only 232 electoral votes, but Clinton received 

over 2.8 million more popular votes than Trump did.1 Green Party candidate 

Jill Stein sought recounts in Michigan, Pennsylvania, and Wisconsin, the 

three states that Trump won by the smallest margins.2

 A computer scientist 

had called into question the reliability of some voting machines used in those 

states.3

According to the New York Times, 

An effort to recount the votes . . . led by Jill Stein, the Green Party candidate, was never viewed as very likely to change Donald J. Trump’s election 

to the presidency, but it revealed something else in stark terms: 16 years after a different presidential recount in Florida dragged on for five agonizing 

weeks, bringing the nation close to a constitutional crisis, recounts remain a 

1. See Jonathan Martin & Michael Wines, Trump’s Win, but Little Else, Is Now Settled, 

N.Y. Times, Dec. 20, 2016, at A1; Jo Craven McGinty, The Numbers: Popular-Vote Push Faces Some High Hurdles, Wall St. J., Dec. 3, 2016, at A2; Ed O’Keefe, Electoral College Casts 

Votes for Trump, Wash. Post, Dec. 20, 2016, at A1; Susan Sullivan & Ed O’Keefe, Electors for 

Trump Urged to Have Second Thoughts, Wash. Post, Dec. 7, 2016, at A4. 

2. See Michael A. Memoli, A Look at Wisconsin’s Recount, and Why It’s Unlikely to 

Change a Thing, L.A. Times, Nov. 30, 2016, at A2; Byron Tau, Green Candidate Requests a 

Recount, Wall St. J., Nov. 26, 2016, at A4. 

3. See Tau, supra note 2. 
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2 Federal Judicial Center 10/26/2023 

tangle of dueling lawyers, hyperpartisanship and claims of flawed technology.4

Recount litigation in state and federal courts resulted in mixed results for 

Stein, and to the extent that recounts were conducted there was no change in 

the assignment of Electoral College votes.5

 On December 19, 2016, Trump 

was elected President by the Electoral College by a vote of 304 to 227; seven 

electors strayed from their pledged votes.6

Wisconsin 

On December 1, two political action committees and a voter filed a federal 

complaint in the Western District of Wisconsin against the state elections 

commission to block a Wisconsin recount that might “unjustifiably cast 

doubt upon the legitimacy of President-Elect Donald J. Trump’s victory.”7

With their complaint, the plaintiffs filed a motion for a temporary restraining order.8

 Judge Barbara B. Crabb recused herself from presiding over the 

case on the following day.9

On December 2, Judge James D. Peterson denied the plaintiffs a temporary restraining order 

because plaintiffs have made no showing that they will be irreparably 

harmed by allowing the recount to continue during the time it would take 

to brief a motion for a preliminary injunction and give defendants an opportunity to respond to plaintiffs’ motion. But enjoining the recount would 

very likely prevent defendants from completing the recount by the deadline.10

Judge Peterson decided to treat the motion as a motion for a preliminary 

injunction, ordered a response by December 7, and set the case for hearing 

on December 9.11

Jill Stein, the candidate who requested the recount, may seek to intervene. 

The court has not yet received such a motion from Stein, but if she files one, 

the court intends to grant that motion immediately. Stein’s response to 

4. Monica Davey, Steve Eder & Julie Bosman, Recounts Remain a “Political Horror 

Show,” N.Y. Times, Dec. 10, 2016, at A11. 

5. See Jonathan S. Abady & Ilann M. Maazel, Op-Ed, Lessons of the Recount, Wash. Post, 

Dec. 18, 2016, at A23 (reflections by Stein’s lead attorneys in the recount litigation). 

6. National Archives, 2016 Electoral College Results, www.archives.gov/electoral-college/ 

2016 (compilation of the certificates of Electoral College votes); see Byron Tau, Electors Line 

Up Behind Trump, Wall St. J., Dec. 20, 2016, at A1. 

7. Complaint, Great America PAC v. Wis. Elections Comm’n, No. 3:16-cv-795 (W.D. 

Wis. Dec. 1, 2016), D.E. 1; see Monica Davey, Julie Bosman & Steve Eder, Trump and Supporters Go to Court to Block Recounts in Three States, N.Y. Times, Dec. 3, 2016, at A15. 

8. Temporary-Restraining-Order Motion, Great America PAC, No. 3:16-cv-795 (W.D. 

Wis. Dec. 1, 2016), D.E. 2. 

9. Recusal, id. (Dec. 2, 2016), D.E. 13. 

10. Opinion at 1, id. (Dec. 2, 2016), D.E. 17 [hereinafter W.D. Wis. Temporary Restraining Order Opinion]; see Davey et al., supra note 7. 

11. W.D. Wis. Temporary Restraining Order Opinion, supra note 10, at 2; see Minutes, 

Great America PAC, No. 3:16-cv-795 (W.D. Wis. Dec. 9, 2016), D.E. 36. 
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Federal Judicial Center 10/26/2023 3

plaintiffs’ motion, should she want to file one, will also be due Wednesday, 

December 7, 2016.12

Stein elected to intervene,13 and she was represented at the hearing.14

Judge Peterson told the parties at the hearing, “The only question that I 

have is whether this case has to be dismissed for lack of standing because it’s 

clear that on the merits I will deny your request for an injunction.”15 The 

plaintiffs voluntarily dismissed their action on December 19.16

As a result of the Wisconsin recount, Trump’s margin of victory increased by 162 votes.17

Michigan 

On Friday, December 2, Stein and a voter filed a federal complaint in the 

Eastern District of Michigan against Michigan’s director of elections and 

board of state canvassers seeking an injunction requiring that a Michigan 

recount begin in time to be completed by the vote of the Electoral College.18

With their complaint, the plaintiffs filed a motion for a temporary restraining order and a preliminary injunction.19 Also on December 2, Trump and 

Michigan’s attorney general filed actions in Michigan’s court of appeals seeking a writ of mandamus against a Michigan recount.20

The actions were filed following a deadlock in the board of canvassers’ 

review of Trump’s objections to the recount.21 Michigan law required at least 

two business days to pass following the completion of the canvassers’ review, 

which would mean at least four calendar days because of the intervening 

weekend.22 “This four-day delay made unavailable about one-third of the 

time allocated to complete the recount, on the assumption that the recount 

would have to be completed by December 13, 2016—the so-called ‘safe harbor’ date for the selection of presidential electors.”23

12. W.D. Wis. Temporary Restraining Order Opinion, supra note 10, at 2. 

13. Intervention Motion, Great America PAC, No. 3:16-cv-795 (W.D. Wis. Dec. 2, 2016), 

D.E. 20. 

14. Transcript, id. (Dec. 9, 2016, filed Dec. 9, 2016), D.E. 37. 

15. Id. at 12–13. 

16. Notice, id. (Dec. 19, 2016), D.E. 38. 

17. See Pennsylvania and Wisconsin End Recount Efforts, N.Y. Times, Dec. 13, 2016, at 

A18. 

18. Complaint, Stein v. Thomas, No. 2:16-cv-14233 (E.D. Mich. Dec. 2, 2016), D.E. 1. 

19. Motion, id. (Dec. 2, 2016), D.E. 2. 

20. Docket Sheet, Trump v. Bd. of State Canvassers, No. 335958 (Mich. Ct. App. Dec. 2, 

2016); Docket Sheet, Schuette v. Bd. of State Canvassers, No. 335947 (Mich. Ct. App. Dec. 2, 

2016); Cases, Opinions & Orders, www.courts.michigan.gov/case-search/?r=1; Brief, 

Schuette, No. 335947 (Mich. Ct. App. Dec. 2, 2016), web.archive.org/web/20161216111228/ 

http://moritzlaw.osu.edu/electionlaw/litigation/documents/2016.12.01_Schuette_Brief_on_

Recount_544177_7.pdf; see Davey et al., supra note 7. 

21. Stein v. Thomas, 222 F. Supp. 3d 539, 541–42 (E.D. Mich. 2016). 

22. Id. at 1–2; see Mich. Comp. Laws §168.882(3). 

23. Stein, 222 F. Supp. 3d at at 2; see 3 U.S.C. § 5. 
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4 Federal Judicial Center 10/26/2023 

On Saturday, December 3, Eastern District of Michigan Judge Mark A. 

Goldsmith set the federal case for hearing on Sunday morning.24 At the hearing, Judge Goldsmith granted a motion to intervene by Michigan’s Republican Party.25 On Monday, Judge Goldsmith granted the plaintiffs an injunction against a recount delay.26 On Tuesday, the U.S. Court of Appeals for the 

Sixth Circuit affirmed the injunction by a two-to-one vote on appeals by intervenors Michigan’s Republican Party and attorney general.27

At 6:15 p.m. on the same day as the federal appellate ruling, Michigan’s 

court of appeals decided that Stein could not seek a recount because she 

could not “allege a good faith belief that but for mistake or fraud, the candidate would have had a reasonable chance of winning the election.”28 Stein 

and the voter filed an amended complaint in federal court that same evening 

alleging additional grounds for a recount.29

On December 7, Judge Goldsmith dissolved his injunction.30 The plaintiffs were not entitled to a recount outside of Michigan’s statutory scheme 

because, “There is no case law recognizing an independent federal right to a 

recount that either this Court or the parties have come across, in the absence 

of actual deprivation of voting rights.”31

Although the recount was stopped,32 litigation remained pending in 

Michigan’s supreme court.33 Two justices recused themselves because they 

had been named during the presidential campaign by Trump as two of twenty-one persons on a list of top contenders for the United States Supreme 

Court.34 Justice Joan L. Larsen “conclude[d] that the unique circumstances of 

24. Order, Stein, No. 2:16-cv-14233 (E.D. Mich. Dec. 3, 2016), D.E. 4. 

25. Docket Sheet, id. (Dec. 2, 2016) [hereinafter E.D. Mich. Docket Sheet]. 

26. Stein, 222 F. Supp. 3d at 545. 

27. Stein v. Thomas, 672 F. App’x 565 (6th Cir. 2016). 

The court of appeals granted intervention to the attorney general, id. at 557 n.1, and 

Judge Goldsmith also granted the attorney’s motion to intervene on December 6, 2016, E.D. 

Mich. Docket Sheet, supra note 25. 

28. Att’y Gen. v. Bd. of State Canvassers, 318 Mich. App. 242, 252, 896 N.W.2d 485, 490 

(Mich. Ct. App. 2016); see Monica Davey, Courts Duel Over Michigan Vote Recount, N.Y. 

Times, Dec. 7, 2016, at A16. 

29. Amended Complaint, Stein, No. 2:16-cv-14233 (E.D. Mich. Dec. 6, 2016), D.E. 30. 

30. Opinion, id. (Dec. 7, 2016), D.E. 36 [hereinafter E.D. Mich. Opinion Dissolving Injunction]; see Monica Davey, 3 Days Into Michigan’s Presidential Recount, a Federal Judge 

Clears the Way to End It, N.Y. Times, Dec. 8, 2016, at A23. 

31. E.D. Mich. Opinion Dissolving Injunction, supra note 30, at 7. 

32. See Byron Tau, Michigan Suspends 2016 Election Recount, Wall St. J., Dec. 9, 2016, at 

A6. 

33. Docket Sheets, Nos. 154862, 154868, 154886, and 154887 (Mich. Dec. 2, 2016). 

34. Statement, Att’y Gen. v. Bd. of State Canvassers, No. 154862 (Mich. Dec. 8, 2016), 

D.E. 63 [hereinafter Young Recusal], publicdocs.courts.mi.gov/sct/public/orders/154886_63_01. 

pdf (Young); Statement, id. (Dec. 8, 2016), D.E. 64 [hereinafter Larsen Recusal], 

publicdocs.courts.mi.gov/sct/public/orders/154886_64_01.pdf (Larsen); see Donald J. Trump 

Finalizes List of Potential Supreme Court Justice Picks, www.donaldjtrump.com/pressreleases/donald-j.-trump-adds-to-list-of-potential-supreme-court-justice-picks, archived at 

web.archive.org/web/20170314010805/donaldjtrump.com/press-releases/donald-j.-trump-addsto-list-of-potential-supreme-court-justice-picks; Alan Rappeport & Charlie Savage, Trump 
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Federal Judicial Center 10/26/2023 5

this case demand my recusal,” although “I did not seek inclusion on the list, 

had no notice of my inclusion before its publication, and have had no contact 

with the president-elect, or his campaign, regarding the vacancy.”35 Chief 

Justice Robert P. Young, Jr., also acknowledged his inclusion on “the president-elect’s infamous list of United States Supreme Court potential appointees” and recused himself “[w]ith reluctance,” noting, “The conflict supposed 

by intervening defendant is both speculatively hypothetical and, in my case, 

improbable [because of age].”36 Chief Justice Young’s service as chief ended 

on January 6, 2017,37 and he retired from the bench in April.38 Justice Larsen 

was confirmed as a circuit judge on the U.S. Court of Appeals for the Sixth 

Circuit on November 1.39

On December 9, 2016, by a vote of three to two, Michigan’s supreme 

court decided not to review the court of appeals’ determination that Stein 

was not entitled to a recount.40 On March 31, 2017, Judge Goldsmith accepted a voluntary dismissal of the action.41

Pennsylvania 

Unsuccessful in Pennsylvania’s state courts,42 Stein and a voter filed a federal 

complaint in the Eastern District of Pennsylvania on December 5 against 

state election officials that sought declaratory judgments against PennsylvaOffers a List of Possible Supreme Court Nominees Who Reflect His Principles, N.Y. Times, 

May 19, 2016, at A16. 

35. Larsen Recusal, supra note 34. 

36. Young Recusal, supra note 34. 

37. See Holly Fournier, Markman to Be Chief Justice, Detroit News, Jan. 7, 2017, at A3. 

38. See Michael Gerstein, “One of a Kind” Justice to Retire from High Court, Detroit 

News, Mar. 30, 2017, at A6; Emily Lawler, Justice Announces Retirement, Grand Rapids 

Press, Mar. 30, 2017, at A14; see also Melissa Nann Burke, Young Ends Senate Campaign, 

Detroit News, Jan. 4, 2018, at A6 (reporting on a decision to drop out of Michigan’s senate 

race because of lackluster fundraising); Melissa Nann Burke, Young Set to Challenge Stabenow, Official Says, Detroit News, June 21, 2017, at A5; Paul Egan, Ex-Chief Justice Young 

Says He Is Joining U.S. Senate Race for GOP, Detroit Free Press, June 21, 2017, at A4. 

39. PN371—Joan Louise Larsen—The Judiciary, www.congress.gov/nomination/115thcongress/371; see Melissa Nann Burke, Senate Confirms Larsen for Appeals Court, Detroit 

News, Nov. 2, 2017, at A3; see also Joe Paul Egan, Trump Names Justice Larsen to U.S. 6th 

Circuit, Livingston Cty. Press, May 9, 2017, at A4; Brent Kendall & Aruna Viswanatha, Party-Line Vote Approves 3 Trump Picks, Wall St. J., Oct. 6, 2017, at A4; Joe Palazzolo, Conservatives Nominated for Appeals Courts, Wall St. J., May 9, 2017, at A6. 

40. Att’y Gen. v. Bd. of State Canvassers, 887 N.W.2d 786 (Mich. 2016); see id. at 792 

(Justice McCormack, dissenting: “The stakes in this case may be low, but the public significance of the issues presented could not be higher. I . . . would . . . give this Court an opportunity to consider the important legal questions implicated here.”); id. at 794 (Justice Bernstein, dissenting: “I would reverse the Court of Appeals and allow the recount to resume.”); 

see also Davey et al., supra note 4. 

41. Order, Stein v. Thomas, No. 2:16-cv-14233 (E.D. Mich. Mar. 31, 2017), D.E. 41; see 

Notice, id. (Dec. 19, 2016), D.E. 38. 

42. See Stein v. Cortés, 223 F. Supp. 3d 423, 428–29, 437 (E.D. Pa. 2016); Green Party 

Drops Penn. Recount Effort, Miami Herald, Dec. 4, 2016, at 23A. 
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6 Federal Judicial Center 10/26/2023 

nia’s election procedures.43 The complaint alleged, “The Pennsylvania election system is a national disgrace. Voters are forced to use vulnerable, hackable, antiquated technology banned in other states, then rely on the kindness 

of machines. There is no paper trail. Voting machines are electoral black 

sites: no one permits voters or candidates to examine them.”44 The plaintiffs 

also sought recounts in counties that used optical scan ballots and forensic 

analyses of electronic voting machines.45 On the day that the complaint was 

filed, Trump, his electors, and the state’s Republican Party filed a motion to 

intervene.46 Judge Paul S. Diamond granted the motion on the next day.47 On 

December 6, the plaintiffs sought an expedited hearing on a preliminaryinjunction motion.48

Judge Diamond set the case for hearing on December 9.49 He allowed 

three amicus curiae briefs.50

On December 12, Judge Diamond concluded, “There are at least six separate grounds requiring me to deny Plaintiffs’ Motion. Most importantly, 

there is no credible evidence that any ‘hack’ occurred, and compelling evidence that Pennsylvania’s voting system was not in any way compromised.”51

Judge Diamond decided that two doctrines compelled him to abstain:52

(1) the Rooker-Feldman doctrine, which states that among federal courts only 

the Supreme Court has appellate jurisdiction over state-court proceedings,53

and (2) the Younger doctrine, which counsels against federal jurisdiction 

over controversies that would result in undue interference with state proceedings.54

In addition, Stein lacked standing,55 and she inexcusably delayed bringing 

her suit.56 “Finally, granting the relief Plaintiffs seek would make it impossi43. Complaint, Stein v. Cortés, No. 2:16-cv-6287 (E.D. Pa. Dec. 5, 2016), D.E. 1 [hereinafter E.D. Pa. Complaint]; see Stein, 223 F. Supp. 3d at 429; see also Steve Eder, Call Rises for 

Recounts Outside Trump’s Door, N.Y. Times, Dec. 6, 2016, at A17. 

44. E.D. Pa. Complaint, supra note 43, at 1. 

45. Id. at 18. 

46. Intervention Motion, Stein, No. 2:16-cv-6287 (E.D. Pa. Dec. 5, 2016), D.E. 2. 

47. Order, id. (Dec. 6, 2016), D.E. 22; Stein, 223 F. Supp. 3d at 429; see Order, Stein, No. 

2:16-cv-6287 (E.D. Pa. Jan. 9, 2017), D.E. 67 (granting the intervenors’ postelection motion 

to withdraw from the case). 

48. Motion, Stein, No. 2:16-cv-6287 (E.D. Pa. Dec. 6, 2016), D.E. 4; Stein, 223 F. Supp. 3d 

at 429. 

49. Order, Stein, No. 2:16-cv-6287 (E.D. Pa. Dec. 6, 2016), D.E. 23; see Stein, 223 F. Supp. 

3d at 429. 

50. Order, Stein, No. 2:16-cv-6287 (E.D. Pa. Dec. 8, 2016), D.E. 45; Order, id. (Dec. 8, 

2016), D.E. 40; Order, id. (Dec. 8, 2016), D.E. 36. 

51. Stein, 223 F. Supp. 3d at 426. 

52. Id. at 426, 434–37. 

53. D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 

U.S. 413 (1923); see also Martin A. Schwartz, Section 1983 Litigation 21–24 (Federal Judicial 

Center 3d ed. 2014). 

54. Younger v. Harris, 401 U.S. 37 (1971). 

55. Stein, 223 F. Supp. 3d at 426, 431–34. 

56. Id. at 426, 436–37. 
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ble for the Commonwealth to certify its Presidential Electors by December 

13 . . .”57

Reviewing an amended complaint,58 Judge Diamond held on September 

7, 2018, that Stein and Pennsylvania voters had standing to challenge the accuracy of Pennsylvania’s voting procedures for future elections.59

Judge Diamond dismissed the case as settled on November 29, retaining 

enforcement jurisdiction at the parties’ request.60 The settlement agreement 

required new voting systems in Pennsylvania to meet three criteria: “a. The 

ballot on which each vote is recorded is paper; b. They produce a voterverifiable record of each vote; and c. They are capable of supporting a robust 

pre-certification auditing process.”61 The defendants agreed to pay the plaintiffs $150,000 in attorney fees and costs.62

Approximately one year later, the plaintiffs asked Judge Diamond to enforce the settlement agreement by forbidding Pennsylvania from using voting machines that produce a paper record of computer-entered votes rather 

than a computer record of paper-entered votes.63 Following a three-day evidentiary hearing in February 2020,64 Judge Diamond denied the motion on 

April 29.65 Regarding the motion as inexcusably delayed and the plaintiffs’ 

expert theories as daft, Judge Diamond determined that the motion’s hacking 

allegations were baseless and irrational.66

57. Id. at 426. 

58. Amended Complaint, Stein v. Cortés, No. 2:16-cv-6287 (E.D. Pa. Feb. 14, 2017), D.E. 

71. 

59. Opinion, id. (Sept. 7, 2018), D.E. 98. 

60. Order, id. (Nov. 29, 2018), D.E. 110; see Settlement Agreement at 4, id. (Nov. 28, 

2018), D.E. 108-1 [hereinafter E.D. Pa. Settlement Agreement] (“The parties agree that this 

Agreement between the parties must be considered a private settlement agreement, does not 

require court approval, and that the parties are not seeking Court approval.”). 

61. E.D. Pa. Settlement Agreement, supra note 60, at 2 (footnote omitted); see Jan Murphy, Pa. to Share Vote Machine Cost, Harrisburg Patriot News, Dec. 2, 2018, at A18. 

62. E.D. Pa. Settlement Agreement, supra note 60, at 4. 

63. Motion, Stein, No. 2:16-cv-6287 (E.D. Pa. Nov. 26, 2019), D.E. 112. 

64. Minutes, id. (Feb. 21, 2020), D.E. 172 to 174; see Jonathan Lai, Stein Asks Block of 

Vote Machines, Phila. Inquirer, Nov. 27, 2019, at B5. 

65. Opinion, Stein, No. 2:16-cv-6287 (E.D. Pa. Apr. 29, 2020), D.E. 197, 2020 WL 

2063470. 

66. Id.; see Jeremy Roebuck, Jill Stein Gets a Lambasting by Judge, Phila. Inquirer, Apr. 

30, 2020, at B1.