The Vare Precedent in the Senate—and Its Relevance to the Trump-Russia Inquiry


Edward B. Foley

- Moritz College of Law
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law @ Moritz
Posted on July 13, 2017, 5:25 pm

            In Pennsylvania’s 1926 U.S. Senate election, the Republican candidate William Vare beat his Democratic opponent, William Wilson, by over 170,000 votes. Yet the U.S. Senate never seated Vare. Why not? Because his campaign had engaged in significant campaign improprieties, including spending massive sums of money in ways the Senate considered corrupt. The Senate that denied Vare the seat, by the way, was in the hands of a Republican majority, and the effort to keep Vare from obtaining the fruits of improper campaign activity was led by George Norris, the progressive Republican from Nebraska.

            One can debate whether Norris and his fellow Republicans were correct in denying Vare the seat. Although there was some tampering with ballots that affected the vote count, this kind of fraud—directly manipulating the vote tally itself—was not nearly enough to wipe out Vare’s six-figure margin of victory. Rather, Vare was denied the seat on the theory that the real votes actually cast for him had been improperly polluted by his corrupt campaign expenditures.

            It is dangerous in a democracy to deny voters their choice of which candidate to put in office on the ground that the electorate’s actual decision was tainted by misinformation. It’s like the Senate telling the citizens of Pennsylvania, “you can’t have the candidate you said you wanted because you were misled, and therefore the choice you actually expressed can’t be accepted as a genuine or authentic choice.” Because the refusal to seat Vare seems to have rested on this kind of reasoning, my initial view was that the Senate made a mistake in this case.

            But I’ve come to appreciate that there is force to the other side of the argument—to Norris’s position, in other words. In some circumstances, surely, it is appropriate to void the outcome of an election because of malevolent disinformation injected into a campaign at a critical moment with the intent to affect the result. The classic hypothetical that election law scholars often consider involves “dirty tricks” designed to suppress the vote, like telling voters that their polling place has been changed or that Election Day has been changed to a different day. That kind of deliberate fraud about the voting process is one step removed from deliberately destroying valid votes that have been cast. Since the latter is certainly grounds for voiding an election, the former is thought to be as well—if it can be proved that enough actual voters were misled by the deliberate fraud about the voting process, such that the votes they would have in fact been cast were wrongfully suppressed and thus not included in the count (as they should have been). Indeed, as recently as 2013, in deciding a case involving a “robocall” effort to suppress votes by telling voters their polling place had been changed, a Canadian court indicated that this kind of impropriety would be a basis for voiding a parliamentary election if there were evidence that it affected enough votes to make a difference. See McEwing v. Attorney General of Canada, 2013 FC 525 (2013).

            But deliberate fraud about the mechanics of the voting process—like a voter’s polling location—is one thing. Deliberate fraud about an opposing candidate is another. Imagine a candidate’s campaign falsely accuses an opponent of running a pedophile ring, intentionally disseminating this falsehood in the hope that it will suppress turnout in favor of the opponent. (This hypo obviously draws upon the “pizzagate” fabrication during last fall’s presidential election, but it is emphatically a hypo for purposes of present discussion insofar as the fabrication is attributed to the candidate’s campaign.) Would that circumstance also be the basis for voiding an election, assuming it could be showed that this deliberate falsehood actually had the suppressive effect that was intended? Reaching this conclusion requires a judgment that the voters who stayed home, or who changed which candidate they supported, because of this deliberately false message should not have let it affect their calculation about whom to vote for: they were wrongly duped. That kind of judgment is understandable, but it does involve second-guessing the voter’s choice—and thus arguably is invading the domain of voter sovereignty, territory that might be considered sacrosanct in a democracy.

            Or maybe it should not matter whether or not there is solid proof the deliberate lie about an opposing candidate suppressed, or swayed, enough votes to turn the result of the election. Maybe it should be enough that the attempt was made. Given the inherent malevolence of one candidate spreading deliberately calumnious falsehoods about an opponent in an effort to win the election, maybe the malevolent candidate should be prohibited from profiting from that malevolence, and thus prevented from taking office based solely upon proof of the malevolence itself. In 2010, a British court reached a decision along these lines when it voided an election, denying a winning candidate a seat in Parliament upon proof that the candidate falsely accused his opponent of association with violent Islamic militants. See Watkins v. Woolas, 2010 WL 4339493, upheld in relevant part on review, R v. Parliamentary Election Court, [2011] A.C.D. 20 (Dec. 3, 2010).

            Whatever one thinks of these judicial decisions from Canada and Britain, our fellow democracies, the Vare precedent makes clear that the U.S. Senate would have the power to reach a similar result in reviewing one of its own elections (as would the U.S. House of Representatives). Thus, if a candidate for U.S. Senate were to win an election after engaging in a campaign to suppress votes for the opposing candidate by knowingly fabricating a false report that the candidate’s opponent was running a pedophile ring, one can imagine a latter-day George Norris—John McCain comes to mind, for example—leading the effort to nullify the election, preventing the ostensibly winning candidate from holding a seat in the Senate despite having received more actual votes, because the election was indelibly tainted by the candidate’s deliberately calumnious falsehoods.

            I raise these points about the Vare precedent and its potential ongoing relevance to improprieties in a contemporary or future U.S. Senate (or U.S. House) election in order to contrast (1) the power under the Constitution given each chamber of Congress to nullify an election to that chamber with (2) the absence of any comparable constitutional provision concerning a presidential election. I consider this contrast now in light of the McClatchy news report that there are investigations into whether the Trump campaign was involved with Russian efforts to disseminate deliberately false reports about Hillary Clinton and to target those deliberate falsehoods (like the Canadian “robocall” disinformation campaign) in a way designed to maximize the likelihood that they would suppress votes for Clinton in key battleground locations. I hasten to say that the allegations in the McClatchy news report are far from proven—there is indeed no specific available evidence to corroborate what is allegedly under investigation—and so what follows is simply based on a hypothetical assumption that a presidential candidate’s campaign was involved in this kind of deliberate disinformation activity.

            The main observation that I wish to make is that the Constitution fails to provide, in the context of a presidential election, any institution with authority comparable to the power of the Senate (or House) to judge the elections of its own members. That omission, of course, is because the Founders did not conceive of presidential elections as Americans in the twenty-first century do.   The Electoral College picks the president. Voters only pick the electors. That means this: if Russian disinformation “polluted” the 2016 presidential election in any way comparable to Vare’s corruption polluting his 1926 Senate victory, it was because the Russian disinformation “polluted” the vote for the electors from Michigan, Wisconsin, and Pennsylvania. But once those electors cast their votes for president on December 19, their job was over. They could not be unseated from their state-level office (their office being that of “presidential elector” in their particular state, and their sole function since fulfilled). There would be no way, therefore, for Congress to undo the votes for president that these since-dismissed electors (who are state, not federal, officials) already had cast, which are constitutionally distinct from the ballots that voters earlier had cast for the electors themselves. A problem affecting the ballots that voters cast in November is constitutionally moot after the electors have discharged their constitutionally separate duty to cast their Electoral College votes for president. That’s the lesson from the resolution of the disputed Hayes-Tilden election of 1876. (For more details, see chapter 5 of Ballot Battles.)

            The key point, then, is that for presidential elections Congress lacks a power of the kind that the Senate exercised in the Vare case. To be clear, the Senate’s power in the Vare case was not contingent upon exercising it before Vare was seated. Rather, the Senate could have seated him first and then unseated him afterwards, upon making the same judgment that his election was indelibly polluted by impropriety. Thus, in a future case, if a Senator’s election were to benefit from a Russian disinformation campaign, but the Senate did not come to understand until months after the Senator was sworn into office how that disinformation campaign operated in terms of micro-targeting particular voters through innovative use of social media technologies, the Senate would have the power to unseat that Senator based on the new information coming to light about the way in which the election had been improperly tainted. By contrast, Congress has no power to reach back and undo a presidential election in the same way.

            The Constitution, of course, does provide the power for Congress to impeach and remove a president. But this impeachment power is analytically distinct from the kind of power to judge an election that the Senate exercised in the Vare case. (The Senate has a separate expulsion power that is analytically comparable to impeachment.) For one thing, the impeachment power necessarily focuses on wrongdoing committed by the President himself. The Senate’s elections power is not so limited. The Senate can void an election to that chamber for wrongdoing committed by the candidate’s campaign, or by campaign supporters (domestic or foreign) on behalf of the candidate, even if the candidate himself (or herself) had no personal knowledge of the wrongdoing. The impeachment power, moreover, is limited to “high crimes and misdemeanors.” Whatever that language means, and whatever latitude the House and the Senate have in interpreting it, the words “crimes” and “misdemeanors” connote the kind of penal wrongdoing for which an individual could be sent to prison. Once again, the elections power that the Senate exercised in the Vare case is not so strictly limited: even if the campaign expenditures there were not strictly “against the law” in the way that could give rise to penal liability, the Senate was entitled to make the elections-related judgment that these expenditures were inherently corrupt and improper in a way that tainted the election itself—so that the election result could not stand even if no one was at risk of going to jail for the same campaign activity.

            Whenever the dust settles on the 2016 (and that may not be for a long while), one question that is likely to remain for the future is whether it is wise for the United States to lack an institution for judging the validity of a presidential election comparable to the power of each chamber of Congress to judge the validity of its own elections. Is it wise, in other words, either to leave Congress powerless to determine the validity of a presidential election that arguably has been tainted with an intentionally malevolent disinformation campaign—or, in the alternative, for Congress to be forced to invoke the impeachment power, which was designed for other purposes and ill-suited as a substitute for judging the validity of an election, as the only available means of addressing an impropriety that may have tainted the outcome of a presidential election?

            It is way to early to make definitive assessments on these issues, in light of the fast-unfolding nature of news concerning what happened in the 2016 election. But, in light of these same news reports, it is not too early to begin thinking about these issues.

 

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Edward B. Foley is Director of the Election Law at Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law at Moritz. View Complete Profile

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