My article about a 1994 federal law suit that overturned a State Senate election became a national controversy. Despite angering conservatives, being accused of fake news, and having my piece mischaracterized and ridiculed, Marks v. Stinson remains relevant.
UPDATE #2: Mar. 23, 2017 at 6:50 a.m. — In testimony given to the House Permanent Select Committee on Intelligence, which held its first public hearing Monday on the alleged Russian interference with the 2016 presidential election, FBI Director James B. Comey confirmed that the FBI is “investigating the nature of any lengths between the Trump campaign and the Russian government” and whether there was any coordination or crime committed.
CNN is now reporting that the FBI has information which indicates that associates of Donald Trump may have made contact with suspected Russian operatives in order to coordinate the release of information damaging to the Clinton campaign.
UPDATE #1: Feb. 16, 2017, 8:50 a.m. — The hypothetical legal scenario presented in this article has always been a long shot conditioned upon Donald Trump being a participant in or accomplice to Russian interference with the election. It was presented as an academic exercise and not under any illusion that it is plausible. Whether anyone other than Hillary Clinton has the legal standing to bring a suit in federal district court seeking the relief prescribed in Marks v. Stinson is unclear. Even so, whether it is possible hinges on a question that is central to the premise of this piece, and on a lot of minds across the nation. Every major news media outlet in the country is now asking: What did Donald Trump know, and when did he know it?
PREVIOUSLY — On December 10, The Huffington Post published a story I wrote called “Russian Interference Could Give Courts Authority to Install Clinton.” The piece was about Marks v. Stinson, an obscure federal court case that came out of Pennsylvania in 1994. I stumbled upon it while researching case law on election fraud just hours after the Washington Post story broke regarding Russian hacking of the 2016 presidential election. My piece was intended to be an academic one, weighing the merits of an interesting if not bizarre law suit in which a federal district judge removed a sitting elected official from office because of voter fraud and replaced him with his erstwhile opponent from the preceding election.
Bringing new meaning to “beginner’s luck,” the piece (my first for HuffPost, coincidentally) exploded across the internet within hours of publication. It was shared well over 200,000 times, became the top story on Google news, and made headlines across the country.
Ten days later, I was interviewed by PolitiFact about fake news sites that had run variations of my story but misrepresented it to fit their respective agendas.
At least one journalist publicly asserted that I am a “fake news” writer while managing to misstate key parts of my argument, speculate as to my motivations, betray her own bias with pointed opinionated language, and stoke the passions of her apparently conservative readers for a news website with a less-than-stellar reputation.
I’m open about my biases. But I’m not a news reporter.
“Fake news is news that is not true, not news that you don’t like, or opinions with which you disagree,” I explained. “I am not a news reporter. I am a commentator. I write opinion pieces, and use facts to substantiate my opinion.”
As my article continued down the digital grapevine, the facts and the arguments were allowed to progressively deteriorate, like a game of telephone, allowing the truth, the intent, and even the identity of the original writer to be lost.
Ultimately, the whole event revealed the troubling state of our information culture, with established news media failing to report accurately while consumers fail to regulate the way we consume and interact with information. Once a misstatement is presented as fact, or a journalist tasked with reporting objectively inserts their opinion, there’s no turning back. The story is consumed and regurgitated ad nauseam, sometimes taking shape over long periods of time, and as we have seen with Hillary Clinton, become ingrained in the discourse in ways that are impossible to undo. Like a virus, the contagion spreads.
The primary criticism lobbed against my piece was that it existed at all. “Election fraud using absentee ballots is not the same thing as Russian hacking,” the outraged citizenry of social media declared. “There’s no proof of fraud!”
I never claimed proof of fraud, or that Marks v. Stinson gave us the right to remove Trump and elect Clinton. I am clear that this would be a case of first impression. From my interview with PolitiFact:
"Ultimately, is it plausible? Of course not," [Mohajer] 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."
It’s implausible partly because it’s never happened before at the presidential level, but also because it would be fairly cost-prohibitive. Presidential transitions and elections are expensive and taxing on the electorate. It is certainly possible, however, for courts to intervene to protect the integrity of free and fair elections, and that much is made clear by a lot of federal law, not just Marks. Nevertheless, I was explicit in my piece that the 1994 and 2016 cases are not analogous. But they don’t need to be. This is why the concept of rationale is important, and why I repeatedly stated in my original piece that the case provides rationale that could be instructive.
The rationale for Marks v. Stinson was clear:
“Bruce Marks would have won the [Election]... but for the wrongdoing [of his opponent]” and the “wrongdoing was aimed to benefit one candidate and disadvantage the other.” (Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994)).
Using the Marks rationale, one can insert any number of types of misconduct for “wrongdoing,” so long as it is shown that it could have changed the outcome. Indeed, the Marks court merely required that the “wrong doing was substantial, that it could have affected the outcome of the election, and rendered the certified vote count an unreliable indicator of the will of the electorate.” Id. at 886.
I wrote my piece with Russian hacking as the hypothetical instance of wrong doing, and operating under some presumption of conspiratorial participation on the part of Donald Trump, informed mostly by videos like this:
The legal definition of conspiracy wouldn’t even require Donald Trump to have actively participated. It is merely required that he know about it. To that end, did FBI Director James Comey act with the intention of benefitting Donald Trump when he released the letter to Congress a week before the election indicating possible new indictments against Hillary Clinton? Did Donald Trump know about it? Did it have an effect on the outcome of the election?
Perhaps the most relevant and instructional part of the Marks case, however, is it’s very clear position that courts are vested with broad discretionary powers to void elections and stop someone from assuming office, in it’s discussion of free and fair elections:
The public interest is served when the courts enforce free and fair elections. Federal courts in shaping equity decrees are “vested with broad discretionary power,” and have exercised their powers in enjoining persons from taking office and voiding elections. Pursuant to the mandate of the Third Circuit, this court may order the certification of a candidate if “it finds, on the basis of record evidence, that the designated candidate would have won the election but for the wrongdoing.”
And in the final conclusion of law, perhaps the most poignant message for Hillary Clinton supporters who are grieving the injustice of this election:
Various voters testified that they were angered and disillusioned by the...Election and its aftermath. Many citizens have expressed a common thread of pent up feelings reflecting a long suppressed disgust and outrage at the officials and the system responsible...It would be a delusion to conclude that the underlying evils which conceived and nurtured the wrongdoing involved have been eliminated. Only a concerned citizenry can do that. Only then will they have a permanent and justified confidence in the electoral process.