How might election fraud get litigated?
By Karl Buvinic
Tomorrow, 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?
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 York, 435 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. Specifically:
Plaintiffs allege that state officials, acting under the color of state law, committed fraudulent acts in the conduct of voter registration and the subsequent general Presidential election which served to deprive them of their constitutionally protected right to vote. Plaintiffs also assert a claim premised upon a violation of the equal protection clause of the fourteenth amendment… That claim, couched in general terms, is that the ballots cast by legitimate voters were debased and diluted by the illegal votes cast by thousands of unqualified voters.
The plaintiffs charge that officials of the Board of Elections of the City of New York intentionally committed wrongful acts and used improper and slipshod procedures in the administration of the mail registration drive and the conduct of the general Presidential election. The alleged frauds and omissions are said to have resulted in the fraudulent registration of thousands of otherwise ineligible voters, and in turn, the casting of numerous illegal ballots.
Plaintiffs’ allegations focus not only on the processing of registration applications, but on the conduct of the election as well. They seek to hold Board officials responsible for the alleged chaos and confusion on election day.
Plaintiffs allege numerous instances where individuals who registered more than once in turn cast several ballots. As well, they charge that votes were recorded under names of persons who do not exist, mental incompetents, and convicted felons.
However, plaintiffs do not claim that the alleged illegal votes were sufficient in number to have changed the outcome of the election. Rather, they assert that the election process was so permeated by fraud that determination of the rightful winner is impossible.
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:
Where a state or municipal agency is alleged to have deprived individuals of equal protection of the laws, it may be the subject of the federal court’s exercise of equitable powers… The City and State Boards of Elections are not immune and may lawfully be enjoined from debasing or diluting the votes of qualified citizens
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:
As the Supreme Court said in Reynolds v. Sims, supra, where political districting in Alabama was challenged under the fourteenth amendment: [T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.”
So far, so good for the Trump campaign!
Question 3: What sort of election irregularity give rise to an equal protection claim? Here, the Donohue Court gives a long and detailed answer:
The Second Circuit Court of Appeals rejected the argument that administrative infirmities in an election, in the absence of “willful or knowing” dilution of ballots, create a remedy in federal courts.
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.
The fraud or other unlawful behavior must be committed by persons acting under color of state law, or by private persons acting jointly with state officials.
The party seeking a new election must establish that the fraud or other unlawful behavior changed the outcome of the election. In the absence of proof of a causal relationship between the unlawful conduct and the result of the election, injunctive relief must be denied.
The Donohue court has thus laid out the legal test that the plaintiff must meet. He must plead and prove specific acts of misconduct, involving ‘willful or knowing’ ballot fraud, by state officials or private persons acting jointly with state officials that changed the outcome of the election.
This is a heavy burden. The Trump campaign will have to work hard to meet this test. But it is a matter of fact and evidence.
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. It is difficult to imagine a more damaging blow to public confidence in the electoral process than the election of a President whose margin of victory was provided by fraudulent registration or voting, ballot-stuffing or other illegal means. Indeed, entirely foreclosing injunctive relief in the federal courts would invite attempts to influence national elections by illegal means, particularly in those states where no statutory procedures are available for contesting general elections.
Finally, federal courts in the past have not hesitated to take jurisdiction over constitutional challenges to the validity of local elections and, where necessary, order new elections.
The fact that a national election might require judicial intervention, concomitantly implicating the interests of the entire nation, if anything, militates in favor of interpreting the equity jurisdiction of the federal courts to include challenges to Presidential elections.
So the Court is unequivocally asserting it can order a do-order if necessary.
Question 5: Can expert opinion and statistical analysis be used as evidence to prove ballot fraud? The Donohue Court says, again, YES.
Plaintiffs, through the use of statistical survey techniques, sought to prove that the November 2, 1976, Presidential election in New York was permeated by voter fraud.
Plaintiffs’ theory is that their sampling demonstrated that widespread irregularities probably deprived President Ford’s electors of their victory. Where, as here, direct testimony is unobtainable, opinion testimony based on reliable hearsay is admissible.
The relevance of this testimony in determining the extent of the irregularities in the vote for Presidential electors depends directly on the “universe” selected for study. If the universe is properly defined, the reliability of the study, in turn, depends on whether the sample selected evidences the characteristics of the universe. The theory upon which a sample is admissible as proof of the universe is that “. . . the `universe’ is, by reason of its uniformity or by reason of some predictable uniformity of recurrence of differences without it, susceptible of fair representation by a randomly selected sample, so that the characteristics of the `sample’ will, within mathematically measurable limits of reliability, evidence the characteristics of the universe.” Judge John F. Dooling, Jr., Polls, Samples, Surveys and Scientific Evidence, Seminar for Newly Appointed United States District Judges (Feb. 12-16, 1962, Monterey, Cal.). If the sample is properly selected, the characteristics of the sample may be attributed to the entire universe. Note, Public Opinion Surveys as Evidence: The Polls Go To Court, 66 Harv.L.Rev. 499 (1953).
This is another crucial point. The Trump campaign can introduce statistical evidence of voter fraud, and this evidence can be accepted as reliable if it is statistically sound.
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. The Court wrote:
Plaintiffs’ evidence of voting irregularities is susceptible of inferences other than fraud. It is conceivable that in many of the instances where “old” registrants who voted did not reside at the address of registration, there was no fraud at all… This is not to say that such irregularities should be condoned and that serious efforts should not be made to correct these administrative deficiencies, yet, such votes cannot be considered “fraudulent” in any real sense.
Even if we accept plaintiffs’ contentions that 306,107 “fraudulent” votes were cast primarily in New York’s urban areas, as a matter of mathematics, plaintiffs have failed to establish that the outcome of the election would have been different in the absence of fraud. As Dr. Bardwell conceded, the partisan nature of the vote was not a factor in his statistical survey (Dec. 8, Tr. A61). As such, it is impossible to determine what percentage of the fraudulent vote went to Mr. Carter and what portion went to President Ford.
Nor have plaintiffs presented any independent evidence that would provide a basis for this court to conclude that Mr. Carter’s margin of victory was derived from fraudulent votes.
In sum, the plaintiffs have failed to prove that specific acts of fraud were performed by persons acting under color of state law, or that the irregularities in the voting, if eliminated from the final tally, would have changed the result.
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.
Let’s summarize what we’ve learned:
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.)
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.
Caveat: It’s important to note that we’ve done a deep dive into just a single Federal District Court case from 1976. A NY District Court ruling isn’t binding on other District Courts in other states, and could be ignored or overruled by SCOTUS. It’s easy to get surprised by what Courts do! That said, the allegations in Donohue are so similar to our present-day situation, and its findings so broadly supported by other precedent, that I think something like this reasoning is almost certain to be applied. (I omitted the footnotes/references from the quotes to make the text readable to non-lawyers. You can find all the original references in the court’s original opinion.) If anyone with Lexis/Nexis or Westlaw access wants to supplement my thoughts above with other cases, though, please feel free to do so in the comments. I don’t have access to either so finding this information was quite a chore.