Friend of the blog, and accomplished Indiana lawyer, Mark Small has become involved in a case challenging the 2016 Presidential Election. Pro se petitioners from Massachusetts petitioned the First Circuit for a writ of mandamus to conduct a new election, alleging that Article IV, section 4 of the United States Constitution guarantees a republican form of government and protection against invasion. Petitioners allege, in effect, that the interference of Russia with the U.S. elections constitutes an invasion that has deprived them of a Republican form of government. The First Circuit denied their request and they have appealed to the United States Supreme Court.
Mark has since taken up their cause and has filed a motion (pdf) for the United States Supreme Court to appoint a special master. The petition is currently set for consideration at the Supreme Court’s conference of March 17, 2017. A friend predicted that the Court will decline to hear the case “under the ancient rusted can of worms doctrine.” I tend to agree with that prediction. Then again, I’m also one of those guys who rolls his eyes and the idea of playing the lottery. That’s based on sound mathematics. And, yet, someone in town bought a ticket that won $435 million.
It’s an interesting idea that is founded on the premise that Russia engaged in cyberwar to alter the election to place its chosen candidate in the Presidency and those sympathetic to him in the House and Senate. (I acknowledge that this “hacked the election” rhetoric is a bit slippery — hacking the actual voting machines is one thing; setting up fake Twitter accounts to promote desired messages is a different thing. There are potentially different levels of interference in the spectrum in between.) Those same bodies refuse to investigate activity from which they benefit. Where is a state or a citizen of a state to go for relief? The argument here is that it’s the judiciary. (Though, you eventually run into that possibly apocryphal quote from Jackson that “John Marshall has made his decision, now let him enforce it!”)
Small argues not only that the judiciary is the branch of government that can provide relief in this situation but also that they have the authority, through a special master appointment, to investigate allegations of election tampering. He first notes that the Founders were extremely concerned by the prospect of foreign powers meddling in our affairs. At the time our Constitution was created, this kind of political intrigue was very much a current memory. Small quotes Hamilton in Federalist 68 when he says:
Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?
Hamilton was writing about how the electoral college was designed to guard against foreign influence. But, Small points out that the electoral college is not independently elected as the Founders anticipated and they are elected “part and parcel, in the same process as that by which vote are cast for the President and Vice-President.” He turns to Madison’s Federalist 43 and its interpretation of the “Invasion Clause” for additional support. Madison said that the provision served to protect states against “foreign hostility” and against ambitious or vindictive enterprises of its more powerful neighbors. He reads this passage as supporting the proposition that the judiciary has a role in implementing the protections of the guarantee clause:
In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends.
The role of the judiciary is particularly important where the executive and legislative branches are compromised (in this case, they are alleged to be the beneficiaries of Russian interference). The solution is to appoint a special master — sort of an ad hoc investigative arm of the judiciary — to do the following:
a.) Identify those officials, agencies, departments and offices of the United States Government engaged in the collection, analysis, and reporting of data pertaining
to cyber intrusions, and mitigation of effects of intrusions conducted and/or facilitated within the United States by the Government of Russia and or its agents in the year 2016.
b.) Obtain from those officials, agencies, departments and/or offices, and, subject to the discretion of the Special Master, obtain from third parties, whose identities are disclosed to the Special Master, any and all summaries, analyses or reports, classified or unclassified, related to cyber intrusions, more probably than not conducted directly or indirectly by the Government of Russia, and that were determined by those officials, agencies, departments and/or offices to have been related to the November 2016 congressional and presidential elections.
c.) If the Special Master determines the Government of Russia more probably than not committed one or more cyber intrusions involving the Presidential and
Congressional elections in one or more precincts/districts in one or more states in the year 2016, enquire of polling organizations and the election officials in each
of the affected precincts/districts/states to determine the possible impact of those intrusions.
d.) Prepare for the in camera review by the Supreme Court of a report of the findings of the Special Master conforming, to a reasonable extent, to the
standards of Federal Rules of Evidence 702 and 703 as to whether there were cyber intrusions more probably than not committed by the Government of Russia
which may have impacted one or more of the November 2016 congressional and presidential elections.
e.) If such intrusions probably occurred and possibly caused such impacts, the report would identify any individuals, whether agents of the Government of
Russia or others who probably aided or abetted the intrusions, detail the probable type and extent of each intrusion, describe the possible impact of each intrusion
or pattern of intrusions, and identify the particular relevant election races.
If the results of the investigation showed that the margin of victory was the result of illegal activity and/or espionage and aggression by a foreign power, then the Courts would have the authority to fashion equitable relief including potentially a re-election.
Like I said, I view this as a long shot but, as I also said, someone is hundreds of millions of dollars richer than they were last week because they are far more optimistic than I am.