A 1995 federal court ruling out of Pennsylvania may offer some clues to Clinton supporters as to possible legal authority for removing an elected official from office and replacing them with their erstwhile opponent.
In light of late-breaking reports Friday evening that Russians interfered with the 2016 presidential election to assist Donald Trump’s victory, Clinton supporters are furiously in pursuit of remedies.
At 10:45 p.m. Friday evening, the Washington Post broke an explosive story alleging that Russians had interfered with the 2016 presidential election in order to assist Donald Trump in a victory over democratic candidate Hillary Clinton. The story reveals that a CIA assessment detailing this conclusion had been presented to President Obama and top congressional leaders last week.
The development has Clinton supporters and other concerned Americans confused and hot in pursuit of potential remedies. No clear constitutional remedy exists to halt the certification of the outcome. Article II of the U.S. Constitution vests Congress with the power to determine the date by which the Electoral College will cast their votes, presently set for December 19. In recent weeks, a massive online movement asking members of the Electoral College to become “faithless” or “conscientious” electors and to vote for Clinton instead of Trump has garnered national attention.
The electors would be well within their constitutional authority to do so, say groups like Hamilton’s Electors, which claims that the purpose of the Electoral College is to prevent demagogues like Mr. Trump from assuming the nation’s highest office. A petition urging the Electoral College to make Hillary Clinton president has gained nearly 5 million signatures.
Proponents of this strategy are concerned, with good reason, about the likelihood it will succeed. With Donald Trump having won 306 Electoral College votes, 37 Republican electors would need to switch their votes to Clinton, a tall order, and in the event that no one candidate has 270 electoral votes, the decision would go to the Republican-controlled House of Representatives.
Some social media users have begun circulating the phone numbers of various state attorneys general, urging fellow citizens to contact them and request that the Electoral College voters be enjoined from casting their vote until such time that all formal investigations of Russian hacking conclude. Once the electors cast their votes on December 19, they fear, any constitutional means for preventing Trump’s road to the White House will be exhausted.
However, at least one court decision suggests there is some federal authority to invalidate the election outcome after the fact.
In 1995, the U.S. Supreme Court let stand the ruling of a federal district judge in Pennsylvania that invalidated a state senate election due to fraud, ordering the winner be removed from office and the subsequent vacancy be filled by his opponent. (Marks v. Stinson, 1994)
The Pennsylvania state senate held a special election in November 1993 to fill a seat that had been left vacant by the death of the previous democratic senator, and pitted Republican Bruce Marks against Democrat William G. Stinson for the spot. Stinson was named the winner, but massive fraud was later uncovered that resulted in litigation.
Two of the elected officials who testified in the Pennsylvania case said under oath that they were aware of the fraud, had intentionally failed to enforce laws, and hurried to certify Stinson the winner in order to bury the story. The narrative recalls the Washington Post’s revelation that Republican Mitch McConnell was aware of the CIA’s conclusion that Russians had intervened and opted to do nothing.
In February 1994, after Stinson had already taken office, a federal judge ordered he “be removed from his State Senate office and that [his opponent, Bruce Marks] be certified the winner within 72 hours.”
Stinson appealed to the United States Court of Appeals for the Third Circuit, but ultimately, this was the first known case in which a federal judge reversed an election outcome. In January 1995, the U.S. Supreme Court allowed the ruling to stand.
The high court’s decision to not interfere with the lower court’s ruling indicates at least some federal legal precedent that high courts may rule the outcome of an election invalid due to fraud or interference. Which is to say, that if after Donald Trump assumes office it is shown that Russian hacking (or any fraud, for that matter) robbed Hillary Clinton of the presidency, there is some legal authority on point that implies courts could seat Clinton instead.
Obviously both the stakes and the office in question are much higher than in the 1994 case. There has been no case of first impression with regards to the presidency being overturned to the wrongful winner’s opponent.
There is also, of course, no constitutional Electoral College process or system in Pennsylvania, so the situations are not exactly analagous. But the reasoning behind the federal court’s decision may hold muster.
It is not clear how the 1994 federal case would impact a presidential election. Furthermore, that case involved the judge throwing out all absentee ballots and requiring the vote be decided only by those ballots cast at the machine, which would be problematic in the case at present.
As of December 9, Clinton has won the national popular vote by more than 2.8 million votes. According to Cook Political Report, the vote count has Clinton approaching 66 million votes, meaning the first female major-party nominee has already earned more votes than any other presidential candidate in history, second only to Barack Obama (the totals suggest she is on course to surpass the president’s 2012 count, as well).