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The VICE Guide to the 2016 Election

An Expert Explains What Would Happen If Voter Fraud Decided the US Election

In the infinitely unlikely case that fraud really did decide an election, it would be a "clusterfuck."

by Mike Pearl
Sep 22 2016, 8:26pm

Image by Sarah MacReading

A poll from earlier this month says 46 percent of Americans currently believe that electoral fraud in the US is widespread. Oh and hey, while we're on the subject of things Americans currently believe, many of them think evil clown attacks are widespread.

As multiple studies have shown, the US doesn't have a problem with voter fraud. In particular, there are almost none of the Groucho-disguise shenanigans that all those voter ID laws will supposedly curtail. Still, Donald Trump has this wild idea that the election might be "rigged" against him.

Just for fun, I decided to take Trump's insane prediction and actually game it out: What if an American presidential election were decided not by the votes but by a criminal act? How would the country's institutions respond, and would there be any way to overturn the results?

Here's my fake fraud scenario: Imagine a very close election that came down to two swing precincts in swing states: one in Ohio, and one in Florida. In both imaginary precincts, it appears that hackers have managed to taint the result in favor of Trump (these imaginary hackers are working independently of Trump's campaign). If the fake votes are counted, Trump's in the White House. If they're thrown out, Hillary Clinton wins.

It goes without saying, there would most likely be chaos: partisan clashes in the streets, a stock market plunge, and an epidemic of low productivity as America's workers checked their news feeds nonstop. But what could the government do? To figure it out, I ran my very implausible scenario past Joshua Douglas, an associate professor of law at the University of Kentucky and the author of a comprehensive state-by-state review of election contesting procedures.

He was generous enough to walk me step-by-step through my hypothetical in tremendous detail. He confirmed that it would be a clusterfuck.

VICE: What happens if there's election fraud in Florida and Ohio?
Joshua Douglas: I think the likelihood of this happening is extremely exceedingly small. We're talking in the world of hypotheticals here.

OK, hypothetically, what would happen?
It's the secretary of state in Ohio that would have the ultimate authority of certifying the results. The first things you'd have to look at are state statutes—regulations that say what would happen if the secretary of state has evidence suggesting that the margin of invalid votes exceeds the margin of victory. If the margin of victory is higher than the margin of fraudulent votes, you can still certify the winner because the fraudulent votes basically wouldn't change the outcome.

And who makes the call in Florida?
In Florida, it's now the "Elections Canvassing Commission" that would certify the result. One Florida statute [suggests] that the commission has the authority not to certify the results at all, meaning that Florida would not have its electoral votes sent to Congress—which ultimately counts the electoral votes and declares the winner of the presidency.

Next, since you specialize in contested elections, I'm guessing you'll tell me about the process of contesting a result, right?
Another step [is] a request for a recount before an election contest, if the margin of victory is small. That would certainly happen before any election contest. An election contest basically challenges certification and says that the secretary of state should not certify the results because there's a question about the proper winner. Then, depending on the state, and also depending on which office, it would take a particular path. So we look at Florida election code and Ohio election code to see what path that would take.

Let's start with Ohio. How do they handle this?
Ohio law explicitly prohibits election contests for presidential elections.

You're kidding.
There is no basis to challenge—through the state court system or a state mechanism—the validity of the presidential election in Ohio. It's very clear about that.

What about Florida?
In Florida, you can. In Florida, it's just treated like a regular judicial case. You basically file a lawsuit in Leon County, which is where Tallahassee [the state capital] is. That's what happened with Bush v. Gore [the court case that followed the 2000 election].

How does it work if the state says there was fraud?
One precedent is the Miami mayoral election in 1997, in which the fraudulent ballots that made the difference in the election were the absentee ballots. [So] the court found that the fraudulent activity was only in the absentee ballots. It was very clear based on expert testimony that the absentee balloting could not be explained by any other factor besides fraud. So the court found that the best remedy was to throw out the absentee ballots and certify the winner based on the regular ballots.

Crazy! Could voters just have their valid votes not counted in the presidential election if they happen in a batch tainted by fraud incident?
I think it's very unlikely to have ballots thrown out. But if all of the fraud is in absentee balloting, then the Miami case suggests maybe it can happen. The bigger the office, however, the less likely I think this would occur. A judge would really try to avoid throwing out any validly cast ballots. If the judge could separate out the fraudulent ones, then yes the judge would toss those.

What about in Ohio, where they can't contest an election—what would happen there?
What would probably happen is that the losing candidate would probably file a lawsuit in federal courts under the equal protection clause and argue that the conduct of Ohio's elections was flawed under the equal protection clause. [The federal court] would have a range of possible remedies. It could mandate certification of one side or the other. It could abandon certain ballots—again, like the Miami example—or it could order a new election.

How speedy would a new election be?
It's never happened, so who knows? I think the court would very, very strongly try to avoid that.

If that doesn't happen, and the loser keeps fighting it, it escalates to a higher court, right?
There's also another wrinkle in our crazy hypothetical. The US Constitution simply says that the state legislature determines how to allocate the state's electoral votes. So, in theory, the legislature could pass a law—after Election Day—simply awarding the state's electoral votes to one candidate or the other. Florida Republicans threatened this tactic in 2000.

A state legislature can just override everyone's vote?
Yes, the state legislature has the constitutional authority to take away people's right to vote for the state's presidential electors.

I'm imagining all these judges straining to avoid new elections, and not wanting to toss out votes. What happens if the vote tallies keep being upheld—let's say because the fraud can't be 100 percent proven—but the loser keeps contesting them?
Eventually it could go all the way to the US Supreme Court. So the state election contest would go through the Florida state contest system to the Florida Supreme Court, then to the US Supreme Court, and that's the exact path that Bush v. Gore took. In Ohio, it would just be through the federal court system up to the US Supreme Court. The US Supreme Court would have the discretion on whether to hear a case, so it might not take it at all. In that case, the Sixth Circuit in Ohio, or the Florida Supreme Court, would have the final say.

Is there any way to contest the result if the Supreme Court upholds it?
Once you get there, you then have to see if Congress would actually count the electoral votes. You can go to Congress and say, Congress, you shouldn't count the votes from Ohio because they're fundamentally flawed. Congress sort of has the authority not to count the votes.

Why "sort of"?
There's a federal law called the Electoral Count Act, which says to states: If you set up a procedure before election day to resolve any disputed elections, and you finish that procedure, by what's known as the "safe harbor deadline," the validity of your votes is conclusive—we will count your votes. This was the other big dispute in Bush v. Gore, which in many ways was a timing issue.

That part about finishing their procedure sounds legally tricky as well...
Whether the state actually followed its own procedure is certainly something that could be litigated in and of itself as well.

It sounds like the Supreme Court's decision would probably hold, right?
Another wrinkle you have on this now is either in Ohio or Florida in your hypothetical, if it goes to the US Supreme Court, it's possible that the US Supreme Court would tie 4-4. What happens in that circumstance is, basically, that result affirms the lower court. So there you have a situation in which you might uphold the Florida Supreme Court, or I guess the sixth circuit for the Ohio situation, without the Supreme Court weighing in.

Wow. So this year it would be an exceptional clusterfuck, legally speaking?
Very much so. It would be a clusterfuck.

This conversation has been edited for length and clarity.

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