Hand Recount of Presidential Race in Georgia Proceeding under Uncertain Legal Authority


By ordering a statewide hand recount of every ballot in the presidential race, Secretary of State Brad Raffensperger combined different parts of recount and audit procedures.

His decision will result in a time-consuming, labor-intensive process that’s never been attempted before. Raffensperger said it will be worthwhile if it builds confidence in the election, where Joe Biden was leading Donald Trump by over 14,000 votes.

The count will be conducted under Georgia’s rules for election audits, but not as envisioned when those rules were drafted.

The audit rules call for a random sample of ballots to be pulled, and the text or bubbles to be reviewed and counted. The audit would have concluded when all ballots were counted and the odds that the full tabulation was incorrect was less than 10%, according to State Election Board rules.

But instead of pulling a smaller sample of ballots, Raffensperger plans to audit every ballot. The sample would have had to be over 1 million ballots, according to the secretary of state’s office, so Raffensperger decided a full count was justified given the closeness of the race.

“You actually have to do a full hand-by-hand recount of all ballots because the margin is so close right now,” Raffensperger said.

Georgia’s recount rules wouldn’t have allowed a hand recount.

A State Election Board rule passed this year, which Raffensperger supported, required only scanned recounts.

Election integrity advocates protested, but state election officials said scans were faster and more accurate. The audit process was envisioned as a way to check the accuracy of tabulations by looking at the ballots themselves instead of relying on computers.

Georgia rules and laws don’t authorize the secretary of state to leap from an audit to a full hand-based recount, said Bryan Sells, an election law attorney.

“If the goal here is clarity, the secretary of state should not step into murky legal territory,” Sells said. “The secretary of state should not be making any questionable calls here to give either side the opportunity to question the fairness of what he’s doing.”

The secretary of state’s office said an audit of the full ballot count is merited and allowed. State law permits the secretary of state to set a risk limit “not greater than 10%,” which could be read to mean Raffensperger could set the limit at a lower level that would mandate a full recount….

The recount was scheduled to begin Thursday and Friday in Georgia’s 159 counties, and they face a Nov. 20 deadline to finish it. That’s the state’s election certification deadline, which can only be extended “for just cause” by a superior court judge’s order, according to state law.

Even then, another recount is possible.

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