The Null and Void Clause

It’s one thing for the much-admired legal scholar, George Takei, to rely on the Constitution’s “null and void” clause.  After all, he’s the Dean of Twitter Law School. But when Norm Ornstein raises the question of what do about the illegitimate presidency, it can’t be sloughed off with a chuckle. He’s not only a very smart, very knowledgeable guy, but he’s scholar in residence at the American Enterprise Institute. He’s not chopped liver.

American politics is deep into the theater of the absurd—but unfortunately, it is a deadly absurdity, like being in a horror funhouse where the creatures leaping out at you have real knives and chainsaws. Americans now have to face at least the possibility, a tangible one, that the election itself was subverted by a hostile foreign power in league with the winning presidential campaign, with implications all the way down the ballot.

Why, exactly, we “have to” is not entirely clear. It may well be the case that Russia pulled off one of the most amazing coups ever by its disclosure of Democratic Party emails into the election. It may be far worse, doing so with the knowledge and acquiescence of the Trump campaign. And it may be that there was a quid pro quo involved, or at least with the expectation of a sympathetic administration in place.

Whether these things happened, or the extent to which they happened, should be known by the American people, and it will be up to FBI Director Jim Comey to do his job, investigate fully. But this won’t answer the next question, which is whether the absence of Russian involvement would have altered the outcome. Those who hate Trump will take this for granted, “of course it did; it’s obvious.” Beliefs aren’t exactly evidence.

Then there is the question of whether this happens all the time. We do it to them. They do it to us. They’ve done it to us in the past, as have we. Espionage wasn’t invented yesterday. The biggest difference this time is the ineptitude with which it was done, another homage to Trump’s no-nothing approach to the office.

What to do if that proves to be the case? It is a question I have been asked a lot; my stock answer begins with, “The Constitution does not have a do-over clause.” But I am now rethinking the response: Maybe it needs a do-over clause.

Ornstein had been involved with issues of presidential succession well before the notion of Trump being president would have been more than the punchline to a joke. So he comes by his concerns honestly. While the inane rantings of some invisible Mulligan between the lines of Article II exists only in the imagination of the clueless, Ornstein raises their question in a way that would appear to fall outside the Constitution’s four corners.

Here is the big problem. What if the election was effectively stolen? Under the current presidential succession structure, if Donald Trump were impeached and removed from office, Mike Pence would replace him. But if the election had been stolen, Pence’s place as president would be no more legitimate than that of Trump. After Pence—Paul Ryan, the speaker, followed by Orrin Hatch, the president pro tem, followed by Secretary of State Rex Tillerson. If voters’ collective desires were subverted by foreign interference and a party’s collusion, none would have a legitimate claim—especially since the control of the Senate, at least, would have been affected by the Russian role.

A big problem? Obviously. But it comes with a rather difficult caveat. How would one define “effectively stolen”? And even if it could be defined, how would one prove it? Even if every claim against Russia and Trump proved true, we would never be able to ascertain that it changed a single vote. Even if voters came forward and (honestly) announced that it did change their vote, what of the voters who don’t come forward.

Ornstein doesn’t address the hard questions. It may be because, as he notes, none of it can change the fact that Donald Trump is, for better or worse, the president.

Of course, realistically, no do-over option will or could happen to deal with the current ungodly mess. It may well be that the Trump campaign’s role has been exaggerated by its critics; there is not yet any public evidence of collusion. But if the worst case proves to be true, America will have to live with the consequences, including the dark cloud of illegitimacy that would hang over all actions taken by an administration that won with the aid of foreign interference.

Yet, suggesting, as he does, that we should create a door through which polarized political divisiveness, coupled with the absolutely certainty of hysteria about the other team, could tie up American government in a war over whether an election was “effectively stolen” would create an even worse ungodly mess. It would undermine the greatest feature of the United States Constitution, its bloodless coup every four years (or so) when teams that despise each other hand over the keys to the Oval Office.

The “the Russians stole it for Trump” belief that is held dear by true believers is just today’s flavor of stolen elections. There is an infinite variety of other flavors, fueled by fake news and deeply held but baseless beliefs and assumptions. Indeed, the mere suggestion to the deeply passionate on either side will generate such absolute certainty that the only way they could lose is theft that there will never be a peaceful transition of power again.

Was that what you wanted, Norm? Do you really think the public is sufficiently well-grounded in fact, in reasonableness, that they will put aside their partisan passion and pledge allegiance to the other team’s winner?

Does this make the problem of stolen elections disappear? Of course not, and if impropriety occurred, the Constitution provides a means by which a dishonest president can be taken down. But would a nation survive if no election going forward would be untainted by cries of theft, whether real or birthed in the fertile imagination of the deeply passionate?

As for the mechanism proposed by Norm Ornstein, a mere law enacted by Congress to create a do-over, that’s an issue for another day, since it will never matter as the Republic will crumble should we indulge his “big problem” solution at all.

31 thoughts on “The Null and Void Clause

  1. DaveL

    The question of what to do in the case of an illegitimate election, detected after the fact, is an interesting one, but by framing the issue of Russian propaganda as raising that very question looks to me like a very, very bad way of getting at it.

    Certainly, the governments of other sovereign nations can express themselves however they like, and our laws cannot reach them. In the age of the Internet and global media, neither is there any realistic prospect of blocking their message from reaching American ears. Currently, there is nothing preventing foreign powers from endorsing candidates wholesale except custom and diplomatic caution. If we start invalidating US elections because a foreign power has aligned itself with this-or-that candidate, we hand a powerful tool to those who wish to see American democracy fail. They can force the failure of every election, whether they actually do prefer one candidate over another or not, simply by broadcasting their own campaign materials.

    1. SHG Post author

      Assume Russia had been totally above-board and revealed fully accurate emails they obtained through espionage in furtherance of their national interest, and influenced American opinion about the candidates. Stolen election? Assume the same, except the emails were replete with lies. Stolen election? Assume Americans voted against the candidate Russia sought to support. Stolen election? Assume Russia knew Americans would and supported the candidate they didn’t want to win. Stolen election? We could play this game all day long, but we never reach an answer.

      1. D-Poll

        I can reach an answer. The answer is “no”. If the median legal voter in the median state got the result he voted for, the election wasn’t stolen, even if space aliens implanted the desire in his brain. Six months ago, I would’ve thought this was a basic principle of democracy that everyone could understand.

        1. SHG Post author

          We’re gonna need a designated median legal voter, since pretty much everybody, no matter they voted for, is certain they’re the median.

          1. D-Poll

            Traditionally, the way we find out the views of the median legal voter is by holding an election. It does seem that this technique has come under fire in recent times, though.

            1. D-Poll

              It’s not that it’s circular, but that there’s no way of knowing a priori whether any election was stolen without either having proof of falsified votes or painstakingly asking all the legal voters. This is a problem if you need to find out whether votes were falsified, but, since none of the people crying “stolen election” are claiming that any were, it isn’t directly relevant. As long as all the votes placed were legal, which (ironically?) the left is most insistent is true, the result was valid.

  2. Wilbur

    “Even if every claim against Russia and Trump proved true, we would never be able to ascertain that it changed a single vote.”

    This is the nub of the matter.

  3. phv3773

    “,..if Donald Trump were impeached and removed from office, Mike Pence would replace him. But if the election had been stolen, Pence’s place as president would be no more legitimate than that of Trump….”

    As a practical matter, this is a step too far. Any alliance between Pence and Trump is purely for public consumption.

    For both practical and Constitutional reasons, the ultimate safeguard is the House of Representatives. They have the power of the purse and the power to impeach. They have the power to investigate. The membership of the House was little changed by the last election, so there is no real world reason to think they are illegitimate.

  4. LTMG

    Casual readers of the main-stream news will tend to conflate “influenced” with “subverted”. Citizens of any nation can expect other countries to attempt to influence that nation’s elections. Subverting an election requires nefarious and dirty deeds such has hacking into voting and tabulating software. Proving that any nation subverted the recent presidential election will, I think, be quite tough to do to a legal standard. Might come down to a facts versus feelz argument.

    1. SHG Post author

      Subverting an election requires nefarious and dirty deeds…

      Is that the new legal test for stolen elections, subverting by nefarious and dirty deeds?

      1. D-Poll

        Well, yeah. I think the implication here is that subverting an election requires that the result was actually faked and not consistent with the actual votes placed by actual voters, such as in the hypothetical case where millions of non-citizens illegally vote in California. Notwithstanding the polls suggesting many “groundlings” now believe Russia literally hacked voting machines to change votes, all that happened here is that voters voted according to their preferences as determined by the information they had at the time, some of which may have been provided to them by Russia, which I’d like to think we can all agree doesn’t qualify as “stealing the election” in any rational universe.

          1. D-Poll

            I mean people here. I expect more from people here. I wouldn’t expect the New York Times to agree.

  5. norahc

    It’s beginning to seem like it’s a job requirement to be President to have some type of conspiracy/scandal hanging over your term in office. Are we now defining President’s by their scandals?

    Going back to Watergate/Nixon, it seems like everyone but George Sr has been involved in something that marred their legacy.

  6. Erik H

    “Even if every claim against Russia and Trump proved true, we would never be able to ascertain that it changed a single vote.”

    And what if it did?

    Lying to people in order to influence an election is nothing new. It probably has been going on since the first election in history. How do people plan to draw a line between the legal and illegal conduct?

    1. SHG Post author

      As it now stands, the line is drawn at Trump, but I’m going to engage in wild speculation that it will now be every election going forward for excuses reasons TBD.

  7. Allen

    For the winners no proof is sufficient, for the losers any proof is sufficient. I prefer the rub of the green myself.

  8. Beth

    What can be done if the election really was rigged? What do you think should happen if convincing evidence was found that showed vote tallies were tampered with in ways that might have affected the outcome?

    1. SHG Post author

      While this has nothing to do with the point of the post, it’s an easy answer. If candidates believe there was tampering, they can challenge the vote. If they don’t, the election is final, the winner takes office and gets to work doing whatever and the nation moves on. There is no other way a nation can function.

      1. Billy Bob

        The nation is not functioning [well]. That is the problem. So there must be another way! Hooray, let’s get down to it. That is what the “median voter” voted for. Make no mistake, even if it was the “Electoral College” which decided the election; that was what was handed to us, fair and square.

        So now we have a “no-nothing” president–who is not a “bad” guy by the way, just a little thick between the ears–whose apparent intent is to rock the ship of state and stir the pot. So let’s see what happens? Maybe it works, and maybe it doesn’t. The previous two presidents worked for the top 10% and left the rest of us behind. The animals were getting restless, and the Ruskies apparently became aware of the conundrum of a self-proclaimed egalitarian country which was becoming increasingly bifurcated and dysfunctional. (As if their society was not! Hypocrits, all of em.)

        So right now, we don’t have much choice. There is no do-over! We do have the Supremes however as the C0urt of Last ReS0rt–not the singing ones–although they might start singing if the issue of presidential sucession should ever land in their docket. That would not be good, because Dow Jones Chow Mein would likely crash and burn, and the Federal Reserve might go bananas and raise the funds rate. The Federal Reserve carries more clout than most people realize. The Supremes are a side-show for the Jeffreys, the Totenbergs and Greenhouses of the Fourth Branch of Talking Heads.
        Not to mention self-appointed blawgers and hundreds of Constituitional law prawfs.

        1. SHG Post author

          No, Bill, the country is not functioning well. But it can always function worse. And it can not function at all.

  9. B. McLeod

    The emails were hardly of much note, plus (although Cackley Crone refused to confirm it at the time), they were all genuine. The Russians (if it was the Russians) simply disclosed factual information Cackley Crone and her Cronies would have preferred to keep hidden. I don’t see how anyone could possibly think that would invalidate the election.

  10. David Meyer-Lindenberg

    [i]If voters’ collective desires were subverted by foreign interference and a party’s collusion, none would have a legitimate claim[/i]

    So Ornstein’s claim is that the entire Republican party is under suspicion of eating Putin’s caviar? When did that happen?

    Of course, it’s fortunate for Ornstein’s thesis that he wrote “party,” not “campaign,” because if he’d limited himself to the latter, it’d be hard to see how there could be any illegitimacy about President Paul Ryan or Orrin Hatch. And then there’s this part of the op-ed, which suggests Ornstein’s objection to Ryan/Hatch is founded less on his actual argument and more on his personal feelz:

    [i][An Act of Congress Ornstein worked to overturn] was flawed in many respects, starting with the dubious constitutionality of having congressional leaders in the line of succession (they are not “Officers” of the United States, as the Constitution requires) not to mention their inherent conflicts, including their role in impeachment of the president.[/i]

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