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What are the recount rules in the states still in play for the presidency?

Twenty years ago, a presidential race came down to just one state and 537 votes. It was then the closest margin between two candidates in US history, but eventually the Supreme Court ruled against a recount, handing the White House to Republican George W. Bush over Democrat Al Gore.

This time, just like in 2000, Americans woke the morning after election night not knowing who their next president was. And in one state, the typically Republican stronghold of Georgia, the margin is now so razor-thin it’s smashed even Bush and Gore’s record, shrinking to just 463 votes as of 8pm AEST time.

As final tallies fill up and nerves fray, President Donald Trump has already demanded a recount in Wisconsin, a key midwest state called for Democrat challenger Joe Biden, and unleashed a flurry of lawsuits in the battleground states still up for grabs to stop, slow down or supervise counting. Trump has claimed, without evidence, that a “massive fraud” is behind Biden’s growing lead in the Electoral College, even though votes have long been counted after election day, and many of those latecomers tend to be mail-in ballots, which historically skew Democrat. The only evidence of voting fraud or tampering so far in the election are two cases of Republican voters attempting to vote twice, disclosed by officials in Nevada and Pennsylvania.

Recounts are not uncommon in the wild world of US politics, but rarely do they change more than a few hundred votes (and usually the candidate requesting one needs to pay for it). US expert Dr Thomas J. Adams at the University of Sydney says right now most the margins at play are nowhere near as close as they were back in the Bush-Gore race.

But if key states leaning blue for Biden, such as Nevada, do flip back to red for Trump, then the election could go down to the wire in Pennsylvania where lawsuits over the expanded use of mail-in ballots during the pandemic have already reached the now conservative-leaning Supreme Court.

So what are the rules on recounts in each of the seven states still in the spotlight and what could happen next?

Efforts to distance voters were evident as Americans voted on November 3.

Efforts to distance voters were evident as Americans voted on November 3. Credit:AP

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Georgia

It was tipped early on to be a tight race in the historically red Republican state of Georgia, and as counting nears a final tally, Trump’s lead had dwindled to history-making territory – just 463 votes as of 8pm AEST. If Biden can flip the state, where many of the few votes still to count are mail-in ballots, he will win 16 Electoral College votes – putting him in the White House on AP’s analysis. A win for either candidate in Georgia will clearly be very close, making this state a likely candidate for a recount. Under state law here, either party can request a recount if the margin is less than 0.5 per cent of the votes cast, or if there appears to be a serious discrepancy or error with paper ballots. Once Georgia’s voting is done and the results are certified, they will have two days to file the request.

While Trump lashed the state’s electoral integrity during an extraordinary press conference on Friday, Georgia’s election chief is a Republican, who says officials are “following all state laws”. A judge has already dismissed a lawsuit filed by the Trump campaign shortly after election night, which alleged Republican poll observers “witnessed 53 late absentee ballots [received after 7pm on election night] illegally added to a stack of on-time absentee ballots”. Under Georgia’s rules, these late ballots are thrown out. But both witnesses later admitted to the court they had no evidence the ballots had come in after deadline and the court ruled there was nothing to suggest they were invalid or that the state’s electoral officials weren’t complying with the law.

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Pennsylvania

The spotlight is also shining bright on Pennsylvania, another typically red state, where Trump’s lead has shrunk to about 18,000 votes with just 5 per cent of votes left to count. Many remaining ballots are from Democrat-friendly areas such as Philadelphia, putting the state in real contention for Biden. Here, an automatic recount will be triggered if the race ends up with a 0.5 per cent or less margin but it can also be requested in a county by any three registered voters.

Pennsylvania was another state singled out by Trump in his tirade from the White House on Friday, as he labelled it corrupt and Democrat-run. State election chief Kathy Boockva has defended the processes as secure and meticulous, citing multiple identification and eligibility checks behind each ballot. Pennsylvania’s expanded mail-in voting rules this year, to accommodate increased postal voting during the pandemic, have become a key flashpoint in the election, one which could become critical if the race comes down to the state. For months, Republicans have been challenging its decision to count votes received up to three days after Election Day as long as they are postmarked for November 3.

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Last month, the case made it all the way to the Supreme Court, where a deadlocked bench declined to fast-track the matter, but directed Pennsylvania to mark the ballots in question, in case a ruling was made at a later time. Trump’s latest conservative Supreme Court pick, Justice Amy Coney Barrett, did not vote on the decision as the newest judge on the bench. But if Pennsylvania becomes the decider in the Electoral College race, the court, now with a five to four conservative lean, may well intercede.

Trump, who has repeatedly threatened to use the Supreme Court to stop vote counting, had earlier foreshadowed that having a full bench of nine justices would be crucial to deciding the election. On a more local level, a last-minute lawsuit filed after November 3 by his campaign yielded a small win, when Republicans were granted better access to observe vote counting.

Arizona

In Arizona, another historically red state, the rules are tougher. Recounts cannot be requested by candidates but, under some tricky maths, a recount will be triggered automatically if the difference between the top two candidates is equal to or lesser than one-tenth of 1 per cent of the total number of votes cast. State election chief Katie Hobbs has told US reporters she doesn’t expect that threshold would be met. That’s because, right now, while Biden’s lead is narrowing as vote counting continues, he is still up by about 46,000 votes. Still, some media outlets have so far held off calling the state for the Democrats and Trump’s supporters have by no means given up on the state. About 100 have been gathering in front of a counting centre in Phoenix, some carrying military-style rifles and handguns, to chant “Four more years!” and “Count the vote!” Arizona was ahead of the pack on counting, having started to count early ballots on October 20 but as of Friday afternoon (AEDT), about 10 per cent of the vote was still being tallied including more than 200,000 early ballots.

Nevada

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Once a swing state, Nevada has trended towards Democrats in the past decade. Trump came close to flipping it in 2016. At the time of writing, when officials had tallied 89 per cent of the state’s expected vote, Biden’s lead stood at more than 11,000 votes, but the state was yet to be called blue. Under Nevada law, ballots postmarked by election day will still be counted if they arrive by November 10. Most voters live in Clark County, home to the glittering casino city of Las Vegas, which does not expect to complete counting the bulk of its mail votes until the weekend. Nevada’s recount laws are more relaxed: there’s no automatic recount but a candidate can request one within three days of counting closing, provided they also put down a deposit on the expense. If they win, they get their money back. If they don’t, they foot the bill. Republicans have already been challenging Nevada’s decision to send ballots to all registered absentee voters this year, which has made expected return times hard to predict and slowed counting. But in a fresh lawsuit, they are now alleging ballots from dead voters have been counted, although state officials say there is no evidence of improper ballots being processed.

North Carolina

“We’ve clearly won North Carolina … they can’t catch us,” Trump claimed on election night of the swing state he won in 2016. By Friday, his lead was about 76,700 but the race remained too early to call with up to 116,000 mail ballots left to count, as well as the potential of thousands of provisional ballots, according to AP. As long as those ballots are postmarked by November 3, state election officials have until November 12 to count them. And when it comes to mail ballots, as in other states, Biden is outperforming Trump by far. In North Carolina, a recount can be called if the margin is 0.5 per cent or less of the votes cast or 10,000 votes, whichever is less. But recounts in individual counties can be ordered by any candidate if margins are no more than 1 per cent.

Wisconsin

This rust-belt state, which flipped red for Trump in 2016 and has now turned blue for Biden, does not have automatic recounts. But Trump’s team say they are within the state’s allowed margins to request one (1 per cent or less). Republicans won a victory in the state in October when the Supreme Court declined to extend the deadline for receiving mail-in votes – only those reaching election centres before 8pm on election day can be counted. Trump campaign manager Bill Stepien has spoken of “irregularities in several Wisconsin counties” in announcing a plan to demand a recount, but provided no evidence. Winsconsin’s more recent history with recounts demonstrates just how difficult it can be to shift a result. A statewide recount of the 2016 presidential race between Trump and Hillary Clinton started with a similar margin to Biden’s current state-winning lead – about 20,0000. By the end, the margin had shifted by only 131 votes for Trump.

Michigan

Michigan, with its 16 Electoral College votes, was called for Biden because he had a 70,000-vote lead on the evening of November 4, a margin over Trump of about 1.3 percentage points, and the ballots that remained to be counted were from overwhelmingly Democratic areas.

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Under the state’s laws, a recount will be triggered automatically if the margin is 2000 votes or less, but candidates can also request one if they allege fraud or a mistake and they “would have had a reasonable chance of winning the election”. This request must be filed within 48 hours of the count finishing. The Trump campaign has already lost a bid to halt vote counting in Michigan through the courts and the state’s top election official, Democrat Jocelyn Benson, has defended its processes as both transparent and secure. “There were certainly a lot of eyes on the process in every absentee counting board all across our state,” she said.

– with Felicity Lewis, wires

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