This article by Todd Tucker and Stephen J. Mulroy, which appeared on December 16th, is what originally inspired Dr. Kelly Sennholz and Kirstin Elaine Martin to come together to initiate this action. They were already trying to figure out what they could do and it inspired them to work on getting a revote to happen.
By Todd Tucker, Steven J. Mulroy | 12.16.16
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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.[Click here to continue reading How Putin’s Election Interference Could Lead to a Revote at Roosevelt Forward]