0

Suppose that clear evidence were found proving that a state's presidential election results were affected by voting fraud. (This is a hypothetical scenario, and I am not referring to any election that has actually happened.) Under what circumstances could the election be overturned, replacing the fraudulently-chosen electors with those who would have been chosen had the election not been interfered with?

7
  • How could it be known what the election result would have been? Why is it assumed that had there been no fraud, the election would not have been won? And how many candidates were there? Every vote would have to be examined and a decision make about it. How do they know that the vote wouldn't have been the same without interference? Commented Apr 5 at 13:12
  • ... and some voters don't make up their mind until the very last moment. How could anyone say which way they would have voted without the interference? Commented Apr 5 at 13:26
  • 1
    @WeatherVane If you've identified the fraudulent votes, can't you just do a recount without them?
    – Barmar
    Commented Apr 5 at 23:29
  • OTOH, if it's not possible to determine the fraudulent votes, it seems that only a new election in that state could be a remedy.
    – Barmar
    Commented Apr 5 at 23:35
  • @Barmar only if they were votes additional to the proper ones. It someone has tampered with the proper votes, then you would be discounting genuine votes. As you say, a new election is needed, especially if there are three candidates. Commented Apr 6 at 9:00

1 Answer 1

1

The timing matters.

After election day and before the electors are certified by the state, the validity of the election and disputes regarding its outcome can be litigated in the courts.

A state's Presidential vote is irrevocably fixed when the duly certified electors cast their electoral votes and send them to Congress.

Congress, at that point, could overturn the electoral votes it receives on the grounds that the electoral votes from a state weren't electoral votes cast by duly certified electors when it meets in early January after the post-election winners of the Congressional election have been sworn in.

Once Congress certifies the electoral vote in early January after the election, the winner of the Presidential election is absolutely final. Nothing can legality change the outcome of the election at that point, no matter how clear it is that the votes were miscounted and that the other candidate won that state.

Originally, this was governed by Article II, Section 1 of the U.S. Constitution, all of which has been superseded by later constitutional amendments, except the following language:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. . . .

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

The 12th Amendment to the U.S. Constitution replaced a lot of the language omitted above with the following language:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. --]* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Portions to the 20th Amendment to the U.S. Constitution further modified the process:

Section 1. The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

The 23rd Amendment to the U.S. Constitution inserted the District of Columbia into the process stating in the pertinent part:

Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

2
  • Where do the Electoral Count Act of 1887 and Electoral Count Reform and Presidential Transition Improvement Act of 2022 fit into this?
    – Barmar
    Commented Apr 5 at 23:30
  • Basically, the 2022 Act amends the 1887 Act to reduce the discretion of Congress to consider anything other than the allegation that the electoral voters presented to Congress were not duly certified by the state in question.
    – ohwilleke
    Commented Apr 6 at 0:13

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .