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Last Monday, both here and in Midday Matinee, we discussed the deluge of fundraising emails since the election, too many of which lack any hint of strategic planning or a pragmatic theory of change.

This week I received emails from two groups, Hamilton’s Electors (I won’t link because their site has a security issue) and, both of whom want the Electoral College to elect Hillary Clinton rather than Donald Trump. They base their appeals in part on the (legitimate) news of Russian meddling with our election and a 1995 decision by the Third Circuit Court of Appeals, Marks v. Stinson, that upheld a Pennsylvania state senate election result challenge based on evidence of election fraud. The Huffington Post summarizes these groups’ efforts in a story that will probably gull many progressives into thinking a federal court might overturn the 2016 presidential election.

But here’s the thing: in Marks v. Stinson – contrary to the HuffPo story – the Third Circuit did not uphold the district court’s decision to reverse the election outcome:

We urge the district court to reach a final resolution of this case as soon as possible. The character and timing of further proceedings are, of course, left to its discretion. Those proceedings and the court’s final judgment, however, should be consistent with this opinion. In particular, the district court should not direct the certification of a candidate unless it finds, on the basis of record evidence, that the designated candidate would have won the election but for wrongdoing.

If the district court finds a constitutional violation, it will have authority to order a special election, whether or not it is able to determine what the results would have been in the absence of that violation. The district court need not exercise this authority, however. Depending on the circumstances existing at the time these proceedings are concluded, a special election to fill the vacancy for the remainder of the year may not be justifiable in terms of the expense to the state and the burden on the candidates, voters, and election officials. The district court may exercise its own discretion in light of the circumstances then existing or it may simply invalidate the election, declare that there is a vacancy, and leave the decisions concerning a special election and the timing thereof to the appropriate state authorities.

VI. Conclusion:

We will vacate that portion of the district court’s preliminary injunction that required the Board of Elections to certify Marks. The remainder of the preliminary injunction will remain in effect until further order of the district court. [Emphasis added]

Moreover, Marks v. Stinson was a case with far stronger evidence than a court will find in the 2016 presidential elections. Under Pennsylvania law at that time, a voter could request an absentee ballot only if he/she would be out of the country on election day or if physical disability prevented him/her from getting to his/her polling place. Stinson’s campaign staff solicited over 1000 absentee ballot requests by falsely telling voters that this was “a convenient new way to vote,” and conspired with local elections officials to falsify the dates of the requests and let Stinson campaign workers hand-deliver the ballots, rather than mailing the ballots to voters as required by law.

The number of falsely-obtained absentee ballots was greater than Stinson’s margin of victory. Further, the court heard testimony that Stinson told his staffers to stop the illegal activity; that is, he clearly knew about the conspiracy. Oh, and he cast the deciding vote in the Pennsylvania State Senate roll call to certify his own election.

And despite all that, the Third Circuit vacated the part of the district court order that reversed the election outcome, instead remanding the case for the district court to develop further evidence. Yes, Marks was ultimately declared the winner, but not in the case that the HuffPo article cites.

Moreover, there’s simply no way a federal court would equate Russia’s meddling in the 2016 Election – hacking the email accounts of John Podesta and the Democratic National Committee and giving those emails to WikiLeaks, who dribbled them out to foster a cloud of suspicion about Hillary Clinton – to the 1994 conspiracy between the Stinson campaign and local elections officials.

There is no evidence that Trump or his campaign actively conspired with Russia, and before you say “Make him turn over his and his campaigns’ emails!” remember that Trump has a decades-long record of destroying evidence in court cases. And “The proof must be in the emails he deleted!” … is not evidence.

More’s the point, there is no evidence on which a court could find that Russia’s meddling changed enough voters’ minds to overcome Trump’s margins in any of the key swing states. This isn’t like counting illegally-obtained absentee ballots. It requires speculating on voters’ minds and, specifically, speculating on the number of voters’ minds that were changed by Russia’s meddling. And like “The proof must be in the emails he deleted!” … speculation is not evidence.

Simply: groups that want you to send them money because they might file a lawsuit to force the Electoral College to choose Clinton, or might file a lawsuit to overturn the election based on evidence of Russian meddling, are trying to con you. They probably won’t file either lawsuit, and neither suit would have even the faintest hope of winning in court.

The appearance of activity is not activism. Look for more practical ways to invest your time, your money, and your hope.


Credit: Adobe Stock Images. Standard License.