John Wisely, and Ann Zaniewski

Detroit Free Press

Election law experts say Michigan's recount law is unusual.

Other states are more forgiving of poll worker error.

Provision in the law is becoming an issue in Michigan recount of 2016 presidential election.

Michigan's recount law is more restrictive than most states, which would typically recount precincts with minor discrepancies if they appeared to be caused by poll worker error, experts said today.

Michigan's law, which dates to 1954, excludes from recount precincts where "the number of ballots to be recounted and the number of ballots issued on election day as shown on the poll list or the computer printout do not match and the difference is not explained to the satisfaction of the board of canvassers."

In those cases, the vote total approved by the November canvass stands.

In Oakland County, which is slightly ahead of the other counties because it began its recount Monday, officials said at least 17 precincts can't be recounted because of a discrepancy in the numbers. In Macomb, where the recount got underway Tuesday, there were at least seven.

In some cases, the discrepancy was only one ballot. In other cases, it was as high as 11.

In Wayne County, which also began its recount Tuesday, officials acknowledged that the November canvass showed as many as 610 precincts, including 392 in Detroit, had differences between the number of voters in the poll book and the number of ballots in the ballot box. Wayne County hasn't ruled yet on whether the discrepancies can be explained well enough to make those precincts eligible for recount.

That provision in the law has become an issue in the statewide recount of the 2016 presidential election in Michigan.

"I was very surprised to read that provision," said Lawrence Norden, deputy director of the Democracy program at the Brennan Center at New York University.

Norden said he understands the likely rationale behind the law.

"You wouldn't want someone to be able to, after the fact, stuff the ballot box and have that counted," Norden said. "But it seems like to have such a strict rule is a bad idea because it potentially incentivizes someone who doesn't want a recount."

Norden said a rogue poll worker could simply add one name to the poll book at the end of the evening to ensure the precinct couldn't be recounted.

Other states take different approaches.

"In most states, if it's only off by one or two, it's usually poll worker error and absent any other evidence of fraud or impropriety, they'll treat the ballots as valid," said Edward Foley, a professor who runs the election law program at Ohio State University's law school. "The thinking is that those mistakes even out. Michigan is sort of out of step with that prevailing practice."

In the case of more ballots than voters, Foley said some states practice a random withdraw, where someone reaches into the ballot box and removes one ballot to make the numbers match.

In Wisconsin, which also is recounting the 2016 presidential race, ballots are still recounted even if the number of ballots and the number of voters at a particular precinct don't match, said Reid Magney, spokesman for the Wisconsin Elections Commission.

If a precinct has more voters than ballots, it's not a problem and doesn't impact the recount. But if a precinct is found to have more ballots than voters, the county Board of Canvassers must reconcile the difference.

"If they cannot be reconciled, we do what's known as a random drawdown," Magney said. "If there were, for example, 800 voters and 803 ballots, they would essentially stack all the ballots up and randomly pick out three and recount the rest."

Wisconsin uses a similar procedure for absentee ballots.

If there is a problem with an absentee voter application not being signed or properly witnessed, than that particular voter would be disallowed, and there would be a random drawdown of ballots in order to make the number of ballots agree with the number of voters. The drawdown would come from a pool of absentee ballots; officials can identify probable absentee ballots because they only have one set of initials from an election worker.

There is no maximum threshold for the number of discrepancies in which a drawdown wouldn't be used.

Kevin Kennedy, the former longtime director of elections for Wisconsin, said Michigan's law when it comes to poll discrepancies strikes him as unusual.

"That was the first I’d ever heard of that process," he said, adding that most recount laws reflect a state's experience over a long period of time.

"It will tend to reflect their experience. It may be that Michigan has learned that that’s the most effective results that you're going to get," he said, referring to the original results.

Wisconsin's recount began late last week. Magney said late Tuesday afternoon that 19 out of 72 counties had finished the process.

"We are confident that everyone will be complete by the deadline, which is 8 p.m. Monday," he said.

In the election, president-elect Donald Trump beat Hillary Clinton by about 22,000 votes in Wisconsin.

Magney said state officials don't know how many drawdowns there have been yet in this recount. Those figures will be reflected in the minutes of the meetings for the 72 county boards of canvassers.

Norden said proper training of poll workers helps prevent these kinds of problems, noting that discrepancies that are caught in real time are easier to address.

"This shouldn’t have happened in the first place," Norden said. "You shouldn't be able to certify until everything is reconciled."

Foley said that election laws vary by state and since the disputed presidential election of 2000, where the U.S. Supreme Court ultimately halted a recount in Florida making George W. Bush president, more claims have ended up in federal courts.

"There's always the possibility that a federal court will look at a state's rules and say that doesn't comply with equal protection or due process," Foley said. "Almost any issue in a recount scenario can potentially be turn(ed) into a Constitutional claim. That's not to say the claim will be successful."

Contact John Wisely: 313-222-6825 or jwisely@freepress.com. On Twitter @jwisely.

Contact Ann Zaniewski: 313-222-6594 or azaniewski@freepress.com. Follow her on Twitter: @AnnZaniewski.