Written with Steven J. Mulroy, an associate dean and professor of law at the University of Memphis.
In the wake of the election, any number of long-shot strategies has been floated for avoiding the likely outcome of the Electoral College designating Donald Trump as the next U.S. president. From costly recounting of ballots in Midwestern states to “faithless electors” that vote against their state’s winner when the college convenes on December 19, these have ranged from the legally routine to the unprecedented.
This past week, ex-intelligence operative Robert Baer put a new possibility on the table: a revote. The trigger was revelations that U.S. government officials knew but did not fully disclose the extent of Russian hacking and selective leaking of information to damage Hillary Clinton’s prospects. As Baer told CNN, “Having worked in the CIA, if we had been caught interfering in European elections or Asian elections or anywhere in the world, those countries would call for new elections. Any democracy would.” And on Wednesday, news reports disclosed that Vladimir Putin may have personally directed the hacking.
Could a U.S.-wide or multi-state revote happen? Some legal scholars were quick to dismiss the notion, but there’s greater precedent than one might think.
In the disputed 2000 election, butterfly ballots, hanging chads, and other quirks for Floridian election practice left the U.S. without a clear winner of the electoral college for weeks after the election. An initial concern was that of the “butterfly ballot” used in Palm Beach County, a punchcard ballot which opened like a book and had voters punch holes down the center. Ballot misalignments apparently caused at least some ballots to be cast for candidates other than those intended by the voter, caused by a ballot design unique in Florida to Palm Beach County and arguably in violation of state law. One option that was briefly litigated in public and court was a revote, to determine if older liberal Jewish voters really meant to cast votes for the arch-conservative Pat Buchanan, as they accidentally did.
In an unreviewed opinion, the state court held in Fladell v. Election Canvassing Commission that a revote was constitutionally impermissible. This went unchallenged, and the famous Bush v. Gore Supreme Court case did not address the revote issue. As Gore campaign chairman William Daley pithily put it, “people get screwed every day… They don’t have a remedy. Ask black people. They get screwed every day. They don’t have a remedy. There’s no way to solve this problem.”
But as one of us wrote in a law review article at the time, the Fladell decision seriously misread the (admittedly spare) applicable precedent. Prior to the Fladell case, only one court had ever addressed the question of a court-ordered special election relief in the context of a presidential election. In Donohue v. Board Of Elections, plaintiffs brought an action alleging that New York state officials committed fraudulent acts to both disallow qualified voters from registering and voting, and also to allow thousands of unqualified voters to cast ballots in the 1976 presidential election. In a thorough memorandum opinion, the district court ruled that it had the authority to order a special election remedy if the plaintiffs prevailed. As a general matter, the trial judge noted that “federal courts… have not hesitated” to order new elections where necessary. The court acknowledged the potential “serious consequences” of granting such relief, including possible disruption of the presidential transition and allowing the election to be decided by the House of Representatives. The court then concluded: “The point, however, is not that ordering a new Presidential election in New York State is beyond the equity jurisdiction of the federal courts. Protecting the integrity of elections, particularly Presidential contests, is essential to a free and democratic society.” In short, courts can and have ruled that revotes are permissible.
The chief argument against this conclusion is that, pursuant to the authority expressly granted Congress by the Constitution’s Article II, Section 1, Congress has provided by law [3 U.S.C. Sec 1] that the presidential election take place on a particular Tuesday in early November; thus, one can’t do it any later than that. But that language doesn’t apply to court-ordered special elections held to remedy some legal problem in the election, like fraud or machine malfunction. Indeed, courts routinely order such special remedial elections in congressional elections, which are subject to identical congressional provisions about a uniform national date of election. Other objections — that some different voters may vote the second time around, for example, or that the political parties have the advantage of focusing turnout based on 20/20 hindsight — apply in all revotes; we often decide that the need for a free, fair, and un-tampered-with election outweigh those concerns.
Of course, both the New York and Florida cases differ from the current situation, where the problem is not localized but systemic manipulation on the whole. But if anything, that strengthens the case for review. If a perhaps inadvertent ballot design flaw tainting a few thousand votes in Florida merited the attention of the Supreme Court, surely a foreign intervention affecting all 136.4 million votes cast nationally in 2016 would do the same. And a revote would allow voters to make their judgment based on full information, information which their government knew but withheld from them — i.e., that a foreign adversary was acting deliberately to sway the outcome in a particular direction.
The legal case for such a revote is obviously stronger if the foreign intervention is shown to have actually tampered with votes, corrupted the integrity of voting machine systems, or otherwise called the accuracy of the vote totals into question. Merely manipulating public opinion with misleading fake news stories would likely not suffice. If such actual tampering were shown in particular states with a narrow Trump margin of victory, such that it could change the outcome of the election, the case for a revote could be compelling.
Nor should the so-called “political question” doctrine apply. Under this theory, courts should let the elected branches of government hold each other accountable (or have voters hold them jointly accountable) for certain constitutional questions that the courts feel ill-positioned to resolve. But whatever pull this doctrine once had, it was largely eviscerated by Bush v. Gore, when the conservative justices essentially selected who would be president. Moreover, unlike classical political question cases, the dispute in 2016 election is not between Congress and the executive, but between the country as a whole and a force from outside.
Is a revote at all likely? The chances would seem small. But the Republican leadership in Congress has defied Trump on the Russia question, calling for an investigation into election interference and questioning his diplomatic appointees’ close connections to Putin. A federal district court judge faced with significant evidence of foreign tampering could conceivably order such a revote, either in a particular state or even nationwide. (Single conservative judges recently have not been shy to order nationwide injunctions affecting millions of Americans, in cases involving Obama executive orders on immigration and overtime rules.) With a four-four split between the Court’s conservative and liberal wings, a tie would uphold such a decision.
The global context provides support for a revote. In 2004–05, allies of Viktor Yanukovych were accused of rigging the election and literally poisoning his opponent Viktor Yushchenko. Yushchenko mobilized his supporters and sued for a second runoff election. The Ukrainian supreme court agreed, and he went on to win. Yushchenko’s efforts were aided by widespread concerns that Vladimir Putin had intervened in the race in support of Yanukovych. It would be ironic if Russia — notorious for its courts’ lack of judicial independence — would twice provoke foreign countries’ top courts to redo presidential elections. (Another more lowbrow but undeniable coincidence: Ukraine’s uprising was labeled the Orange Revolution, a label Trump’s critics would no doubt enjoy.) And earlier this year, Slate reported that Austrian courts ordered a revote in a presidential election after procedural irregularities raised concerns about balloting there.
Indeed, undue foreign influence regarding the selection of our president was one of the very concerns animating the Founders in allowing presidential electors to decide against the initial result of the election. In Federalist Paper №68, Alexander Hamilton worried about the “desire in foreign powers” to gain influence “by raising a creature of their own” to the presidency. A similar concern underlies the Constitution’s Emoluments Clause of Article I, Section 9, which forbids the president from receiving any financial benefit from a foreign power.
A court-ordered revote would raise all manner of logistical difficulties, and there are serious legal questions about how quickly it would have to take place. It might need to occur before the Electoral College meets on Monday (December 19), for example; or before Congress announces the vote on January 6 pursuant to federal law; or by the inauguration on January 20. We would confront those questions if the right kind of evidence emerged. But lest a conventional wisdom too quickly emerge, people should note: A revote is eminently thinkable.