[EL] an example of an election overturned

Mon Dec 14 18:54:42 PST 2020

Josh --

Below is a list of cases where problems with absentee ballots (sometimes
fraud, sometimes maladministration by election officials) led courts to
overturn the results in some fashion—sometimes ordering a new election and
sometimes invalidating problematic ballots and calling a new winner. Note
the list is almost certainly underinclusive as I compiled it in a few hours
of course prep last year to illustrate the difference between absentee
ballot fraud and in-person impersonation fraud. FWIW, I could not find a
single case where the results of an election were changed due to in-person
impersonation fraud.

Court invalidates absentee ballots and declares that losing candidate
actually won:

   - *Womack v. Foster*, 340 Ark. 124 (2000) (disregard absentee ballots in
   municipal judge election and declare new winner)
   - *Eubanks v. Hale*, 752 So.2d 1113 (Ala. 1999) (reviewed evidence and
   declared new winner for sheriff)
   - *In re Protest of Election Returns & Absentee Ballots*, 707 So.2d 1170
   (Fla. Ct. App. 1998) (reverse trial court order of new mayoral election and
   instead discard absentee ballots and declare new winner)
   - *Kiehne v. Atwood*, 604 P.2d 123 (NM 1979) (invalidate absentee
   ballots for county clerk and declare new winner)
   - *Petition of Byron*, 398 A.2d 599 (NJ Super. Ct. 1978) (invalidate
   certain absentee ballots, resulting in new winner)

The general posture of these cases is that courts were hesitant to
disenfranchise legal votes because of the misconduct of others.

Additional cases where courts invalidated the results and/or ordered
special elections:

   - *McClendon v. Hodges*, 272 S.W.3d 188 (Ky. 2008) (setting aside
   mayoral election)
   - *Pabey v. Pastrick*, 816 N.E.2d 1138 (Ind. 2004) (invalidate results
   of mayoral election and order special election)
   - *Straughter v. Collins*, 819 So.2d 1244 (Miss. 2002) (reversed
   directed verdict and ordered a jury trial wrt county district supervisor
   election)
   - *Adkins v. Huckabay*, 755.So.2d 206 (La. 2000) (invalidated sheriff
   election and ordered special election)
   - *Marks v. Stinson*, 19 F.3d 873 (3d. Cir. 1994) (trial court threw out
   absentee ballots in state senate race and declared new winner. 3d Cir
   reversed remedy and directed to invalidate election and leave seat vacant)
   - *Gooch v. Hendrix*, 851 P.2d 1321 (Cal. 1993) (invalidate school board
   election)
   - Stebbins v. White, 235 Cal.Rptr. 656 (Cal. Ct. App. 1987) (city
   councilman found guilty of bribery and fraud, election results annulled)
   - *McCready v. Harris* (N.C. Bd. of Elec. 2018) (not a judicial opinion,
   but state board of election called for new election in wake of absentee
   ballot fraud in congressional race)

The general posture of these cases was that the outcome was tainted by
fraud and the outcome couldn't stand. The remedial discussion was not about
who won the race, but whether courts should order new elections (with their
costs), or merely annul the results and let election officials decide
whether to hold a special election.

The decision whether to invalidate individual ballots or overturn the
election seems to turn on equitable considerations, not some specific state
statute. Which is just to say, in response to your original question,
nothing in these cases suggests that a federal court couldn't engage in a
similar evaluation.

-- 

*Douglas M. Spencer*

*Professor of Law & Public Policy*

*University of Connecticut*

*Distinguished Faculty Fellow*

*Byron R. White Center for the Study of American Constitutional Law*

*University of Colorado*

www.dougspencer.org

On Sun, Dec 13, 2020 at 6:55 PM Ciara C Torres-Spelliscy <
ctorress at law.stetson.edu> wrote:

> There was a new election ordered by the Florida Supreme Court in 2016. I
> wrote about it at the time:
> https://www.brennancenter.org/our-work/analysis-opinion/how-bank-error-led-throwing-out-election
>
> <https://www.brennancenter.org/our-work/analysis-opinion/how-bank-error-led-throwing-out-election>
> How A Bank Error Led to the Throwing Out of an Election | Brennan Center
> for Justice
> <https://www.brennancenter.org/our-work/analysis-opinion/how-bank-error-led-throwing-out-election>
> The views expressed are the author's own and not necessarily those of the
> Brennan Center for Justice. Not to make you nervous, but on September 15
> the Florida Supreme Court threw out an election and ordered a new one.The
> ruling raises a set of interesting questions, such as under what
> circumstances courts can throw out election results, especially in light of
> the fact that the U.S. Supreme ...
> www.brennancenter.org
>
>
> Ciara Torres-Spelliscy
> Professor of Law
> Stetson University College of Law
> Brennan Center Fellow
> @ProfCiara
> Author of Political Brands https://www.e-elgar.com/shop/political-brands
> and Corporate Citizen?
> http://www.cap-press.com/books/isbn/9781632847263/Corporate-Citizen
>
> [image: Political Brands][image: Corporate Citizen?: An Argument for the
> Separation of Corporation and State]
> View my research on my SSRN: http://ssrn.com/author=584767
>
> ------------------------------
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Rob Richie <rr at fairvote.org>
> *Sent:* Sunday, December 13, 2020 8:03 PM
> *To:* Josh Blackman <joshblackman at gmail.com>
> *Cc:* J Morgan Kousser <kousser at caltech.edu>; Election Law Listserv <
> law-election at uci.edu>
> *Subject:* Re: [EL] an example of an election overturned
>
> CAUTION - External Email -
>
> The 1998 mayoral election in Miami was thrown out, and a new election
> called due to absentee ballot fraud. But it's another case where they
> didn't just set aside those disputed ballots. See the first part of the
> story here:
>
>
> https://www.nytimes.com/1998/03/05/us/fraud-ruling-invalidates-miami-mayoral-election.html
> Fraud Ruling Invalidates Miami Mayoral Election
> By Mireya Navarro, March 5, 1998
>
> Citing ''a pattern of fraudulent, intentional and criminal conduct'' in
> the casting of absentee ballots, a Florida judge voided Miami's mayoral
> election today and ordered a new vote to be held in 60 days. The ruling,
> which overturned first-round balloting on Nov. 4 that led to the runoff
> election of Mayor Xavier L. Suarez, leaves the city without a mayor until
> the City Commission appoints one in the interim. Under the city charter,
> the commission, which is the city's legislative body and which is to meet
> on Thursday, has 10 days to make such an appointment. The judge, Thomas S.
> Wilson Jr. of Circuit Court here, ruling in a lawsuit brought by the
> defeated incumbent, Joe Carollo, said there was no evidence that Mr. Suarez
> knew about the fraud.....
>
> On Sun, Dec 13, 2020 at 7:34 PM Josh Blackman <joshblackman at gmail.com>
> wrote:
>
> Thank you for that great example. Was the lawsuit in state court, or
> federal court?
>
> My hypothetical was a bit different. The federal court does not order a
> do-over of the election. The court simply invalidates the disputed ballots
> (assuming they could be segregated). Could a federal court even order this
> sort of remedy? (The sort of relief Trump requested).
> ---------------------------------------------------------------------------
>
> Josh Blackman
> *Unprecedented: The Constitutional Challenge to Obamacare
> <https://amzn.to/2JDPbUL>*
> *Unraveled: Obamacare, Religious Liberty, & Executive Power
> <https://amzn.to/3l9QcC4>*
> *An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone
> Should Know* <https://amzn.to/34ASPou>
>
>
> On Sun, Dec 13, 2020 at 6:29 PM J Morgan Kousser <kousser at caltech.edu>
> wrote:
>
>   In Nashville in 1962, State Senator Richard Fulton challenged incumbent
> Congressman J. Carlton Loser (pronounced LOHser) in the Democratic primary,
> winning on election day, but losing when a suspicious number of absentee
> ballots were counted from a machine-controlled ward run by Gene ("Little
> Evil") Jacobs.  An investigation by the *Nashville Tennessean* newspaper
> found that Jacobs had stuffed the ballot box in support of Loser, and a
> subsequent lawsuit overturned the election results and ordered a rerun of
> the election, which Fulton won handily, boosting a long career in which
> Fulton was twice elected mayor.  He was one of two congressmen from Middle
> Tennessee to support the 1964 Civil Rights Act, a courageous act that
> opponents unsuccessfully sought to use against him in subsequent political
> campaigns.  Without the local political celebrity that overcoming fraud
> lent to his name, he might have become a country songwriter.  See, e.g.,
> https://peoplepill.com/people/richard-fulton/.
>
> --
> Prof. of History and Social Science, Emeritus
> 1818 Craig Ave.
> Altadena, CA 91001-3430
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
> --
> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> Rob Richie
> President and CEO, FairVote
> 6930 Carroll Avenue, Suite 240
> Takoma Park, MD 20912
> rr at fairvote.org  (301) 270-4616  http://www.fairvote.org
> *FairVote Facebook <https://www.facebook.com/FairVoteReform>*   *FairVote
> Twitter <https://twitter.com/fairvote>*   My Twitter
> <https://twitter.com/rob_richie>
>
> Thank you for considering a *donation
> <http://www.fairvote.org/donate>. Enjoy our video on ranked choice voting
> <https://youtu.be/CIz_nzP-W_c>!*
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201214/f580a4e8/attachment.html>