How might election fraud get litigated?

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The Trump campaign will be filing lawsuits around the country alleging election fraud in the disputed 2020 President election. Media pundits on both sides are quick to offer up their side’s preferred propaganda as to how this will play out. But what does the law actually say on this issue?

SUMMARY:

  • The Federal Courts do have jurisdiction to resolve claims of state and city ballot fraud that causes ballot dilution, even in Presidential elections.
  • The Federal Courts can order a new election if necessary to address fraud, even in Presidential elections.
  • The Trump campaign will need to prove (a) specific acts of misconduct (b) involving willful or knowing ballot fraud (c) by state officials or private persons acting with state officials (d) that changed the outcome of the election.
  • The Trump campaign can use expert testimony and statistical evidence to prove its case, but it needs some direct evidence too. (Remember that in a court of law, eyewitness testimony is considered direct evidence.)

(Article by Alexander Macris republished from Macris.Substack.com)

In 1976, Jimmy Carter defeated Gerald Ford in a narrow election that hinged, in part, on the Electoral College votes of New York. In the aftermath of the election, voters who supported Ford filed a lawsuit in Federal District Court alleging election fraud, and asked for the Court to order a new election. That case is Donohue v. Board of Elections of State of New York435 F. Supp. 957 (E.D.N.Y. 1976).

I’ve selected this case for a deep dive for several reasons. First, it’s one of the only Federal court cases I could find to rule on the matter in living memory. (The other is the famous Bush v. Gore, but that case has been analyzed deeply by experts already, and had a quite different fact pattern from the likely Trump lawsuits.) Second, the allegations made by the Donohue plaintiffs are quite relevant to the affairs of 2020.

Of course we know what happened in Donohue. Spoiler alert: Ford lost and Carter got elected President. But will Trump lose? Let’s really take a close look at some interesting points.

I’ve italicized some of the text above to emphasize how close the plaintiff’s allegations in Donohue were to those likely be alleged by the Trump campaign today. I’ve bolded some other text were the Trump allegations are very different. On such factors, everything turns.

Question 1: Can a lawsuit even be filed against state or municipal agencies, or are the agencies immune from suit under 42 USC 1983? The Court answered yes, a suit can be filed [go to article for explanation]

Question 2: Has an individual’s right to vote been violated under the 14th Amendment if they got to cast their ballot, but the ballot was later changed, debased, or diluted by fraud? The Court answered yes. [go to article for explanation]

Question 3: What sort of election irregularity give rise to an equal protection claim? Here, the Donohue Court gives a long and detailed answer: It is necessary… to plead and prove specific acts of misconduct, including the time, place and circumstances of the alleged deprivation of the right to vote.Purposeful deprivation of the right to vote will not be assumed merely because there is evidence that election officials acted incompetently or negligently. [go to article for details]

Question 4: If the plaintiff does prove its case, can the Court actually order a new Presidential election? The Donohue court says – surprise – YES. This is incredibly important: Protecting the integrity of elections particularly Presidential contests is essential to a free and democratic society. [go to article for details]

Question 5: Can expert opinion and statistical analysis be used as evidence to prove ballot fraud? The Donohue Court says, again, YES. [go to article for details]

Question 6: Given all of the answers above, why did the plaintiffs lose? Why wasn’t Gerald Ford President?! Here’s where it gets even more interesting.

So the plaintiffs in Donohue lost their case for a few reasons. First, they didn’t show that the irregularities were willful acts of misconduct by state officials. Second, the particular ‘irregularity’ they showed didn’t really prove fraud; there were other inferences that were plausible. Third, they didn’t establish that the irregularities actually were irregularities in Carter’s favor! They showed a pattern of irregular votes, but didn’t show that those irregular votes were for Jimmy. Fourth, they didn’t offer any independent evidence to buttress their statistical analysis – no witnesses came forward to allege state officials had acted wrongly, for instance. Finally, they didn’t show enough irregularity to change the outcome.

So the Ford campaign lost its case on the facts, not on the law. They had a case, but didn’t have the evidence.

Does the Trump team have the facts on its side to meet (a)-(d)? I don’t know. No one does yet. We’ll find out tomorrow when we see what his legal team files. It’s going to be one hell of a week.

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