The twin specters haunting the U.S. political system at present are the possibilities that Russian interference materially affected the 2016 presidential election outcome, and that Donald Trump or selected associates “colluded” with the interferers. As evidence of either or both outrages emerges (or doesn’t) and is weighed (or found insubstantial), the big question remains: What are we going to do about it if we learn the election was not conducted in a legitimate fashion?
Marquette University political scientist Julia Azari looks into the options for FiveThirtyEight and concludes the U.S. Constitution provides no procedures for, and may entirely preclude, a “do-over” of a presidential election, particularly once the Electoral College has acted:
The framers gave the Electoral College broad discretion to resolve disputes as it saw fit: The text of the Constitution pretty much says an election is legitimate when the Electoral College says it is.
It is significant that all but one of our disputed presidential elections — including the wildly disputed 1876 and 2000 elections — were resolved before the Electoral College met. And the one exception — in 1824 — followed the precise Constitutional procedures for a House vote in cases where there was no majority for a candidate in the Electoral College. Post-election allegations of fraud and ballot-box-stuffing have arisen in many close presidential elections (notably, in 1960, when there were competing claims of massive election fraud involving both parties in Illinois). While election tampering by a foreign power is a new and shocking allegation, from a constitutional point of view it does not necessarily represent grounds for putting aside the Electoral College’s role in making presidential elections final. The Founders, after all, did not envision direct election of the president, much less identify a way to make sure the Electoral College followed the legitimate popular will.
As Azari notes, federal courts have occasionally ordered “do-overs” for non-presidential elections on various grounds, ranging from impermissibly gerrymandered districts to results too close to adjudicate. She even found a 1976 federal district court case where a judge conceded fraud might necessitate on equal protection grounds a rerunning of a presidential election in New York (the judge did not ultimately find sufficient evidence of such fraud, and the entire case rose and fell before the Electoral College met). But there’s really zero precedent supporting the possibility of a presidential “do-over,” especially after the oath of office is administered. So that contingency could only arise via extended and probably bitter and divisive litigation, and only then if very clear evidence of successful election-tampering appears. The odds of a “do-over” might improve from nil to minimal if the tampering was confined to a few crucial states that controlled the outcome. But the kind of diffuse, impossible-to-measure impact of less targeted forms of interference — like, say, manipulation of hacked Clinton or Podesta emails — would not lend itself to any realistic judicial remedy.
If it transpires that Team Trump did indeed collude with the Russians, the blunt and partial remedy of impeachment would be open to Congress, in theory at least. This would obviously not have the effect of “reversing” the tainted election, since Mike Pence would become president (barring some bizarre double impeachment and trial that made Nancy Pelosi president). And unless the smoking gun of evidence against Trump personally was big and bad, it’s unlikely a Republican-controlled Congress (and the GOP is very likely to maintain control of the Senate even if Republicans gets waxed in 2018) would go there.
If, conversely, evidence of successful election-tampering by Russia arises without signs of Team Trump complicity, it would not make much sense to impeach the 45th president even if his election was clearly illegitimate. A “do-over” might seem fairer, but again, our Constitution does not provide any procedures for that, or any way to force the states that actually administer presidential elections to reconsider their November 2016 handiwork.
So in the end, a “rigged” presidential election, at least at this late juncture, could be a classic injury without a remedy. Inevitably, voters would probably treat the 2018 and 2020 elections as the opportunity for a “do-over,” particularly if there are signs of collusion, and Republicans do nothing to staunch the wound. That would be cold comfort for the would-have-been, should-have-been 45th president Hillary Rodham Clinton. But she’d have to take up that grievance with the ghosts of the Founders.