2016 Postmortem

'The case, Marks v. Stinson, is the first and only known case in which a federal judge reversed an election outcome.

In 1995, the U.S. Supreme Court declined to review an appellate court’s decision of Marks v. Stinson, a case originally brought before a federal district judge in Pennsylvania in 1993, which was subsequently appealed to the United States Court of Appeals for the Third Circuit in 1994. The Third Circuit partially upheld the federal judge’s decision to intervene and invalidate a 1993 state senate election due to fraud. Interestingly, the federal district judge ordered the winner be removed from office and the subsequent vacancy be filled by his opponent.

The 1993 state senate contest pitted Republican Bruce Marks against Democrat William G. Stinson. Stinson was named the winner, but was later accused of participating in a scheme with elections officials to commit election fraud. Namely, Stinson was accused of conspiring to cast illegally obtained absentee ballots in his favor.

In February 1994, after Stinson had already taken office, the federal judge ordered he “be removed from his State Senate office and that [his opponent, Bruce Marks] be certified the winner within 72 hours.”

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. To some, the narrative draws parallels to 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.

Interestingly, the appellate court affirmed the district court’s intervention in the matter. But, the Third Circuit vacated the district court’s decision on ordering the certification of the winner: “We will vacate that portion of the district court’s preliminary injunction that required the Board of Elections to certify Marks.” Marks, 19 F.3d at 890. However, Mark was allowed to remain in the seat after having replaced Stinson for the rest of the term.

The case deliberates interesting rationale that could theoretically be applied in part if, after Donald Trump assumes office, it is shown that Russian hacking (or any fraud, for that matter) robbed Hillary Clinton of the presidency. The case offers clues that imply courts may intervene.

Obviously both the stakes and the office in question are much higher than in Marks v. Stinson. There has been no case of first impression with regards to the presidency being overturned to a wrongful winner’s opponent.

There is also, of course, no constitutional Electoral College process or system in Pennsylvania, so the situations are not exactly analogous. But the reasoning behind the federal court’s decision may hold muster. It is not clear how the case would impact a presidential election.

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).'

http://www.huffingtonpost.com/entry/russian-interference-could-give-courts-legal-authority_us_584be136e4b0151082221b9c