Yesterday a person tweeted about the argument I have advanced: “Here’s what you need to know about #NullifyNow: There are 1.2 million lawyers in the U.S. One, @marksmall1973, thinks courts can order a new election. The other 1,999,999 think he’s full of [excrement]. Getting a clue yet?”
One infers I am one in 1.2 million. I am flattered by the sentiment. I feel special. Unfortunately for the author of that “tweet,” his message is flawed.
People at #NullifyNow seek to overturn the results of the 2016 elections. If you agree with that goal, as I agree with it, you should visit their media sites. The “tweeter” believes my argument about a challenge to the 2016 elections, based in large part upon Donahue v. Board of Elections, 435 F.Supp.957 (E.D.N.Y. 1976), is wrong. He cites all the other lawyers in the United States as support for his position.
First, he mischaracterizes my position. I cite Donohue to say the Federal courts have the ability to void the election. To order a new election is a remedy the courts might consider after the results of 2016 would be declared void.
Second, he does not cite any poll or survey he, or anyone else, has conducted on the question. There also is a law review article in which the summary of Donohue by a professor of law is consistent with my reading of the case. Steven Milroy, an assistant professor of law at the University School of Law, wrote:
“In Donohue v Board of Elections, the plaintiffs brought an action under 42 U.S.C. 1983, alleging that state officials committed fraudulent acts to both disallow qualified voters from registering and voting, and also to allow thousands of unqualified voters to cast ballots in the 1976 presidential election. In a thorough memorandum opinion, the district court ruled that it had the authority to order a special election remedy if the plaintiffs prevailed. As a general matter, the trial judge noted that ‘federal courts ... have not hesitated’ to order new elections where necessary. The court noted the potential ‘serious consequences’ of granting such relief, including possible disruption of the presidential transition and allowing the election to be decided by the House of Representatives. The court then concluded: “The point, however, is not that ordering a new Presidential election in New York State is beyond the equity jurisdiction of the federal courts. Protecting the integrity of elections - particularly Presidential contests - is essential to a free and democratic society.”
“The court did not consider presidential elections to be particularly inappropriate subjects of this type of equitable relief. If anything, the court reasoned, ‘the fact that a national election might ... [implicate] the interests of the entire nation ... militates in favor of interpreting the equity jurisdiction of the federal courts to ‘include challenges to Presidential elections.’ In fact, the court emphasized the potential ‘risks involved in not taking action when liability was shown: ‘entirely foreclosing injunctive relief’‘ would ‘invite attempts to influence national elections by illegal means.” Milroy, Steven, “Right Without a Remedy?” 10 Geo. Mason L.Rev. 214, 226-27 (2001).
Other lawyers agree with me. I have not conducted a poll. I am confident my view as to the equitable jurisdiction of the Federal courts is in the minority. However, my analysis of Donohue does not misrepresent the case, and it is persuasive authority for nullification of the 2016 election.