Judge Valerie Bailey-Rihn noted recounting by hand is the “gold standard” and would lead to the most accurate count. But she said the Stein campaign had not provided “clear and convincing evidence that there is some kind of defect” in the state’s voting machines that would throw off the election results. 

The decision means the counties will be able to select which method they want to use for the recount, which is expected to begin Thursday.

Nineteen county clerks have proposed using voting machines to recount some or all of their votes, though the decision is up to the county board of canvassers, Elections Commission Administrator Mike Haas said. 

Bailey-Rihn said she “may disagree” with those counties, but it’s “their decision.” 

“I understand that it is extremely important to the people of the state of Wisconsin, I understand it is extremely important to the nation, but I must follow the law,” Bailey-Rihn said.

State statutes require candidates who want to force a hand recount to show “clear and convincing evidence” a problem with the automatic count that would lead to an incorrect recount result. The statutes also require a candidate to show a “substantial probability” that a hand recount would change the outcome of the election and produce a more accurate result.

Even if the second part was met, Bailey-Rihn said, the first wasn’t.

Stein’s lawyers invited three experts to testify that election systems are generally vulnerable to cyberattacks and that a hand recount is the best way to ensure the results are accurate, with one calling a hand recount “the gold standard.”

Matthew Brinckerhoff, a lawyer for the Stein campaign, told reporters the candidate is considering all of her options, including an appeal of Tuesday night’s ruling. But he said all of the state’s county board of canvassers should opt for a hand recount.

“There’s nothing for anyone to be afraid of here,” he said. “We’re just talking about counting the votes and making sure that we know who voted for whom and that they were correctly tabulated.”

Bailey-Rihn said if the experts are correct in that the machines could’ve been tampered with, there’s “nothing to link it to Wisconsin,” as the statutes require.

The state DOJ got those experts to acknowledge that they had no specific knowledge of irregularities in Wisconsin. Haas, DOJ’s only witness, also said he wasn't aware of any irregularities in the vote count or that there was any malware on the state voting machines.

That, said DOJ attorney Mike Murphy, is not “clear and convincing evidence.”

“All that we have here is 100 percent hypothetical speculation about what could possibly imaginably happen,” DOJ attorney Mike Murphy said. “That is far, far short of any standard.”

A lawyer for the Clinton campaign, meanwhile, said since there’ll be a recount, it should be done as “accurately and transparently as possible.” 

The lawyer, Josh Kaul, said there’s no question a hand count is the most accurate. He pointed out it’s the method the state uses when doing an audit of election results, which is aimed at ensuring voting machines work properly rather than verifying the outcome of an election. 

Kaul also said a hand recount won’t amount to much more work on behalf of local officials, noting Dane County is choosing to do so despite being the second most populous county in the state. 

“There’s going to be a lot of work that goes into it, but there’s going to be a lot of work that goes into it either way,” Kaul said. 

-- By Polo Rocha