GOP files federal appeal but Mich. recount continues

LANSING, Mich. — As the largest election recount in state history got underway across Michigan Monday afternoon, the state Republican Party sought to stop the counting by appealing a ruling issued earlier in the day by a Detroit federal judge.

U.S. District Judge Mark Goldsmith got the recount started after a rare Sunday court hearing, granting Green Party candidate Jill Stein's request for the hand recounting of about 4.8 million ballots starting Monday, instead of waiting until Wednesday as called for under Michigan law.

The Michigan Republican Party, through its attorney Gary Gordon of Lansing, filed notice Monday afternoon it plans to file an appeal of Goldsmith's ruling with the U.S. 6th Circuit Court of Appeals in Cincinnati.

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Despite the appeal notice, the recount continues unless Goldsmith's order is stayed or overturned.

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“This is a Michigan issue, and should be handled by the Michigan court system,” Michigan Republican Party Chairman Ronna Romney McDaniel said in a news release. “Michigan courts should decide Michigan election law.”

McDaniel said the appeal, which had not yet been filed, would focus on the idea that federal courts should generally stay out of state disputes, and the argument that Stein waited too long to file her recount request.

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Gordon had argued Stein had no chance of overturning the election results — Stein finished a distant fourth in Michigan to Republican president-elect Donald Trump — her concerns about votes not being counted properly were merely speculative, and the recount would result in excessive costs for Michigan taxpayers. Also, the state has a valid interest in a two-business-day pause after ruling on an objection to a recount petition, because it allows for court review of that recount decision, Gordon argued before Goldsmith.

Goldsmith ruled that Stein demonstrated "a credible threat that the recount, if delayed, would not be completed" by Dec. 13, a federal deadline for guaranteeing that the electors Michigan certifies for casting its presidential votes are accepted by Congress.

That's a threat to constitutional rights, Goldsmith said.

"The fundamental right invoked by plaintiffs — the right to vote, and to have that vote conducted fairly and counted accurately — is the bedrock of our nation," the judge said.

Attorneys for the Board of State Canvassers and Trump argued Stein waited too long to request the recount, which would cost taxpayers too much money — possibly more than $4 million above the $973,250 filing fee Stein was required to pay.

But Goldsmith said "concerns with cost pale in comparison" to the integrity of an election.

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Both Michigan Attorney General Bill Schuette and Trump have sued in state court to stop the recount, and a hearing on their suits is scheduled for 4 p.m. Tuesday in the Michigan Court of Appeals in Lansing.

But election law experts told the Detroit Free Press Monday that Goldsmith's ruling, which says the recount "shall commence and must continue until further order of this court," has the effect of preventing state courts from stopping the recount without further judicial review by the 6th Circuit.

Follow Paul Egan on Twitter: @paulegan4