You can’t really challenge elections, right?
Last Monday, former presidential candidate Hillary Rodham Clinton caused an internet firestorm when she suggested that she won’t rule out challenging the 2016 presidential election. While promoting her recently released election tell-all “What Happened” on NPR’s Fresh Air with journalist Terry Gross, Clinton offered the morsel in a nod to supporters and resistance activists who have felt Clinton should fight the outcome and challenge Election 2016.
But Clinton hedged, saying that although she reserves the right to, it would be a case of first impression (i.e., it’s never been done before) and that there wasn’t a clear constitutional means for doing so.
At least one political writer disagrees.
I have been pushing the topic of Donald Trump’s illegitimacy and holding a new election, or a revote, in my journalism and on social media since November of last year, despite having received harsh criticism from far-right media outlets that sought to silence me. Even more troubling however, was the pushback I received from people with whom I ideologically agree.
This past summer I was invited to speak on a panel with Clay Aiken and Guy Benson of FOX News
“The Russians?” Kohn shrugged after I asked her what she planned to say. “Nah. Nothingburger. She was just the wrong candidate.
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When I hear people breathlessly pooh-pooh ideas or discredit them without giving them any meaningful scrutiny or consideration, I am reminded of Hillary Rodham’s storied student commencement speech at Wellesley College in 1969. Then only 21-years-old, the young woman who would one day become the first female major-party nominee for President of the United States received a rapturous ovation from her peers when she opined:
“THe challenge now is to practice politics as the art of making what appears to be impossible possible.”
Nearly fifty years later, the words could not be more poignant, or more desperately needed.
It’s true that a presidential election has never been contested in the United States, and that the Constitution does not expressly provide for a judicial remedy – like, say, a new election. But a new election isn’t expressly prohibited either, which means the issue actually falls within a constitutional “blind spot.” In an interview with Politifact earlier this year, I acknowledged that the likelihood the judiciary intervenes in the election is “next to lightning striking the same person twice.” But whether it is plausible and possible are distinctions worth noting,
“Ultimately, is it plausible? Of course not,” he said. “But if you had asked me 12 months ago whether I thought Donald Trump would be elected president, I would have answered in kind with the exact same certainty.” – Alex Mohajer, to Politifact
How to Challenge Election 2016 For Dummies
My very first piece for The Huffington Post, “Russian Interference Could Give Courts Legal Authority To Install Clinton” became the top story on Google News and the most-shared post-election commentary at HuffPost, while “The Legitimate President” landed me in the cross-hairs of Tucker Carlson, Fox News, Breitbart News and Infowars. The running through-line in these pieces is that a plethora of federal case law exists which gives courts broad discretionary power to issue equity decrees that protect free and fair elections.
I cite to two cases in particular: First, Marks v. Stinson, which is the only federal case law on record in which a judge overturns a state senate election, and which holds that federal district courts can use their broad discretionary power to re-certify the outcome of an election in the event that there is wrongdoing that benefits one candidate at the detriment of another, and when there is reasonable belief that the will of the electorate was not reflected in the outcome.
Second, Donohue vs. Board of Elections, a Supreme Court case which contends that the authority exists to hold a new election, including at the presidential level.
How would this work? The issue came up an interview with independent journalist David Pakman last January, where I was asked to elaborate the details of this legal theory.
Just because something is improbable, or unlikely, or never been done before, does not necessarily mean that it’s impossible. “Firsts” are an important milestone that always involves a courageous leap over a valley of unknowns and uncertainties without a guarantee that it can be cleared. Until it is.
Two other democratic nations, South Korea and Kenya, faced interference with their elections this year. Both countries saw their populace erupt with outrage and demand that justice be done. In both countries, new elections were ordered by the highest court in the land in response to these transgressions.
Americans, however, have failed to coordinate a response to the Russian hacking or in some instances, even agree that it happened at all, even as growing evidence makes the cyber attacks undeniable. It should come as no surprise that the United States remains in last place among all Western democracies with regards to our elections integrity.
The hyper-partisan political climate in which we exist is the culprit. Directly following the election, Russian President Vladimir Putin’s approval ratings [went] up among Republicans. Years of partisan squabbling have trained both sides to turn every political conflict into a ‘Democrats versus Republicans’ issue, and subsequently, conservatives would rather side with Putin than acknowledge the legitimacy of a Hillary Clinton presidency. The result? A troubling trend towards normalizing Trump’s ‘unpresidented’ behaviour, and a reluctance to look at the evidence.
It’s not just speculation or conspiracy theory. It’s not just the consensus of 17 American intelligence agencies since October of last year. On Friday, the Associated Press broke news that the federal government has provided 21 states with notice that their elections systems were in fact targeted by hackers in advance of the presidential election. These include Florida, Ohio, Pennsylvania, Virginia and Wisconsin. In June, we learned that the Russian election hacking was far more widespread than originally thought, with voter rolls being altered and private data being stolen. Last week, Facebook revealed that it had sold up to $150,000 in advertising to Russian entities from 2015 to 2017.
Compare this information with the fact that exit poll data showed Hillary Clinton won the states of North Carolina, Pennsylvania, Wisconsin, and Florida, states that she went on to lose in computerized vote counts.
— Alex Mohajer (@AlexMohajer) November 16, 2016
The discrepancies in these findings by TMDS Research exist outside of the statistical margin of error, meaning that the discrepancies are so abnormal that they likely are the result of some form of malfeasance.
Compare this yet again with the fact that Hillary Clinton won three million more votes than Donald Trump. And yet, the electoral college was lost with 77,000 cumulative votes in Wisconsin, Michigan, and Pennsylvania. And yet this malfeasance has been shooed away by Americans regardless of political persuasion, though most notably supporters of Trump and Senator Sanders, who still maintain a deep animus towards her, an animus that at least in some measure was instilled by a Russian influence peddling campaign. Ah, the circle of life.
And it wasn’t just foreign interventionism. Yes, 200,000 votes were suppressed in the state of Wisconsin by a Republican legislature that passed racist voter ID laws in early 2016. Yes, investigative journalist Greg Palast’s documentary revealed that the Voter Cross Check system purged around 3 million valid votes from elections systems. Yes, James Comey’s letter to Congress a week before the election had a determinative effect.
The Consequences For Failure To Act Are Dire
Nothing about Donald Trump’s candidacy or presidency is normal. Or sane. And yet, the American media and electorate have been quick to normalize him, and a sense of urgency has been created around moving on beyond 2016. But in this case, letting the past be in the past will cause irreparable harm to our country. There is an urgent, immediate, and dire need to act to challenge this interventionism in the name of our free and fair elections and indeed our democracy.
Bill Priestapp, FBI Assistant Director for Counter Intelligence, said it best in his testimony before the House Intelligence Committee: “I believe the Russians absolutely will continue to try to conduct influence operations on the U.S., which will include cyber intrusions.”
They haven’t stopped. They won’t stop. Not unless we show them we will not stand for it.
Also published on Medium.