Recount Or Redo?

That is the question. I'm in favor of closely supervised redo elections in individual states that exhibit strong indicators of fraud. Obviously, that would be a call for a judge to make, based on all the circumstances, and in this case it would almost certainly be decided by the SCOTUS.

Monica Showalter discusses this possibility in Recount? A judicially ordered new election is far better, citing the precedent of the redo of a 2018 NC Congressional race. Along similar lines, commenter Cassander linked to a very interesting article by a law professor that was written a year before the NC case: What Happens If The Election Was A Fraud? The Constitution Doesn’t Say. While the article is predicated on the Dem Russia Hoax, the author seriously considers basic constitutional and historical issues that rarely receive much consideration. The author is open to the idea of a redo of a fraudulent presidential election, and while her article was probably intended to offer aid and comfort to the Russia Hoax resistance, I believe her ideas are on the right track.

Here's a short excerpt that gets to the heart of our current dilemma. Bear in mind, in her mind she's talking about redoing a national election in which a presidential candidate had colluded with a foreign power. (The really interesting question, of course, is: What should be done about candidates who perpetrate hoax accusations, when there's a mountain of evidence that it was, in fact, a hoax.) But for our purposes we're only considering locally fraudulent elections in a handful of states. It's also worth noting that in a number of these states the legislatures are controlled by the GOP, so it's arguably not a partisan issue.

If the 2000 election had taken some different twists and turns, the re-vote question might have come up in a serious way, and it’s not clear what the courts would have decided. At least one federal court has suggested that the courts could order a new election. In 1976, a District Court in New York heard a case alleging voter fraud in several urban locations. The court’s opinion maintained that federal courts had a role to play in ensuring free and fair presidential elections, arguing: “It is difficult to imagine a more damaging blow to public confidence in the electoral process than the election of a President whose margin of victory was provided by fraudulent registration or voting, ballot-stuffing or other illegal means.” This assertion challenged the idea that presidential elections occupy a special category beyond such court remedies. However, in this case, the court didn’t find sufficient evidence that voter fraud had altered the outcome, or even occurred at all. As a result, its claims about presidential elections were not evaluated by higher courts and have never really been tested.

So experts disagree about whether courts can order presidential elections to be held again. That’s not great news for angry people hoping for a do-over. And even if it is constitutionally permissible, there’s much broader agreement that the standard for invalidating an election result and holding another vote is quite high. University of Memphis law professor Steven Mulroy told me that courts will usually entertain this option only if they determine a violation of rules that would change the election outcome. In the case of the 2016 election, this would likely require proving tampering in several states where the vote was close — enough to change the result in the Electoral College. In that case, a few states would vote again, not the entire country, Mulroy said. But this is new territory, and no one knows for sure.

Works for me!

Now, here's Showalter, and IMO making very good sense:

There is talk about recounts, but how do you re-count an election where the ballots have been opened from their envelopes? Where illegal immigrants have quite possibly padded the voter rolls? Where ballots have been harvested and the chain of custody utterly broken? Where who knows what went on behind closed doors as suitcases and boxes on rollers mysteriously arrived at midnight?

Recounts are a fool's errand. Throwing out a bad election and ordering a new one, with hard observation on all sides, full transparency, and judicial supervision is frankly the far better solution, as it is the only way to restore confidence in the system. 

And it's not that farfetched.

The North Carolina teams who challenged the election used the Guaranteee Clause requiring states to not be run as dictatorships (note that all dictatorships have filthy elections) as its rationale, and it could just as easily be done with these blue-run cities and states. 

Trump is facing the battle of his political life with this evidence of electoral rigging and strange outcome from the expected one. Recounts may be a first step but for utterly dirty elections, the best solution is a judicially ordered re-do. One hopes that by the time it hits the Supreme Court, the matter will get to that.

Now, factor this next into the above. Things are happening fast. Here's a link to what I believe is the latest development in PA (again, h/t Clarice Feldman)--but Dems, with the eyes of the nation upon them, are trying to appeal to PA Supreme Court, to bar GOP observers!

Trump Campaign Touts Major Legal Victory in Pennsylvania

Like Showalter, however, my hope is that this is merely a step on the way to a total redo. And these Dems shenanigans constitute a strong argument for that solution.