Conspiracy - USA vs Trump through the lens of Marks vs Stinson( 1994 )

ANALYSIS: CAN COURTS REVERSE RESULTS OF THE 2016 ELECTORAL COLLEGE VOTE IF CONSPIRACY EXISTS?

After reading through the findings in that 1994 Marks vs. Stinson case being cited as precedent for invalidating election results, I wrote this last night, as I hadn't seen a writeup like this yet.

The gist:  Marks vs Stinson disqualifies the cheater where they cheated, meaning when their name is removed from the ticket, HRC will be the default recipient of the concomitant electoral votes, with no new election necessary. This is important because it will not allow the current regime to interfere with a new election cycle.

Based on a survey of the relevant findings in Marks vs. Stinson (1994), I would suggest is that the results of this election can be cast as a civil conspiracy existing between (at minimum)

• Donald Trump/Mike Pence/RNC?
• the Russian Government and/or its agents
• Wikileaks
• Mitch McConnell

SUMMARY:

• In front of millions of Americans, Trump encouraged Russia to steal information and internal communications from the Clinton campaign.
• Russia distributed this via Wikileaks and its own state-sponsored media.
• Trump and his representatives acquired this information, known channels including both Wikileaks and directly from Russian state-sponsored media (again, evidenced on video as he read, word for word, a Sputnik article containing information not yet released by any other press agent at a campaign rally).
• The Trump campaign proceeded to profit, cherry-picking phrases isolated or deliberately misrepresented from their original context to wage a campaign of disinformation against voters who otherwise may have voted for Hillary Clinton.

ANALYSIS:

This is different from traditional attempts at spinning a candidate's own words against their interests; these internal communications were composed using shorthand common among those in frequent communication, not sanitized for public consumption to include and reflect the unstated understandings among those intended recipients of the communication act. As such, much of this illegally obtained information was easily read and/or spun out of context of the original intent of the speech act. Barring a move to legislatively abolish any expectation of privacy for American citizens, this is not fair play, a clear violation of the liberties afforded in the Constitution, and any benefit stemming from this illegal act must not be tolerated.

And there is clear evidence found in social media, blog posts and comments, letters to the editor, and other public statements, that this дезинформация obtained from the efforts of this conspiracy was the deciding factor in thousands - if not millions - of voters to vote for Donald Trump, or to abstain from voting for Hillary Clinton. As the number of individuals targeted on facebook in the swing states alone dwarfed the margin defining victory in those states, let alone the total number of votes likely to be swayed in those states, this de facto invalidates the due process of voters in those states.

The Trump campaign's admitted 'voter suppression' tactics which included spreading this illegally-obtained misinformation via facebook to individuals belonging to protected classes (i.e., race/ethnicity, sex/gender, political affiliation in some jurisdictions) is a violation of the 14th amendment (Equal Protection clause). It is imperative that all information on targeting these voters based on protected classes must be publicly available - what groups were explicitly targeted, and were residents of specific states targeted, and how many total impressions and unique impressions of this content were recorded? An article in Fortune indicates:

Trump’s digital team has also identified 13.5 million “persuadable” voters in 16 battleground states, generated 100,000 different online ads, and built a model for identifying must-win battleground states, with Florida at the top.

But a large part of the team’s strategy now mirrors the negative slant of the larger Trump campaign. In the words of an unnamed senior official quoted by Bloomberg, they’re running “three major voter suppression operations,” aimed at lowering turnout among liberals, young women, and black voters.

The tactics of those initiatives include sharing Hillary Clinton’s 1996 “super predator” comments with black voters via Facebook, and sending residents of Miami’s Little Haiti neighborhood critical messaging about the Clinton Foundation’s efforts in Haiti. According to the same official, such tactics “will dramatically affect [Clinton’s] ability to turn these people out.

Those tactics, as Bloomberg points out, may or may not be as effective as the official claims. But Trump has succeeded in building a large and possibly lasting audience. By election day, the campaign expects to have 12 to 14 million email addresses, as well as the contact and credit card information for 2.5 million donors. Bloomberg values his list of supporters at between $36 and $112 million dollars."

As a member of Congress, McConnell has a sworn duty to act in the interest of the American people; instead, his refusal to share this information with the American people, and his threats to prevent the release of information regarding Russian promotion of makes him, and thusly the Federal Government a party to the conspiracy, and hopefully subject to a whole different set of charges.

So, from a logical perspective, the decision handed down in Marks v. Stinson seems to be a congruent solution for this issue (although I admit, IANAL, this whole episode is making me wonder if I should just go back to school and get a JD, if only there were jobs for lawyers who hate people but aren't evil :) ). As reflected in the US District Court's findings, considering the 3rd Circuit Court's decision, should at minimum have a similar resolution to the following statement, although with one major difference.

This could, at minimum, effectively invalidate the general election results in WI/MI/PN/FL/NC. As such, any electoral votes cast in those states would be made invalid, as they were not cast in accordance with general election results as specified by the individual state constitutions process for selecting electors. A decision could invalidate the certification of electors in those states, either resulting in no electoral votes from those states, or mandating certification of the democratic electors. 

In the first case, no candidate would have reached, 270 EV, but there would still be a majority of electoral votes for Clinton - just not 270, as there are no longer 538 EV in play. In the second case, it would unfold with a simple recertification of HRC's electors ( I feel like I've written this before). So, read the folllowing, substitute "Clinton" for "Marks", "Trump" for "Stinson", etc., "McConnell" for "Board", and you'll get the gist.

A. Certification of Marks 21. Pursuant to the mandate of the Third Circuit, this court may order the certification of a candidate if “it finds, on the basis of record evidence, that the designated candidate would have won the election but for the wrongdoing.” Marks v. Stinson, Nos. 94–1247 and 94–1248, slip op. at 29–30 (3d Cir., March 16, 1994). After three weeks of testimony and after giving full consideration to the standards as set forth by the Third Circuit and in light of the entirety of the admissible evidence, the court concludes that Bruce Marks would have won the election but for the wrongdoing. Curry v. Baker, 802 F.2d 1302, 1312–14 (11th Cir.1986) Accordingly, the court will order the Board to certify Bruce Marks as the winner of the 1993 Special Election in the Second Senatorial District.22. The electorate may be confident that Bruce Marks will be seated as their Senator because he has established his credentials to fill the vacancy. No elector who legally cast a ballot, whether the ballot was cast at the polls or by absentee ballot, will be disenfranchised by this result. In addition, no voter who was illegally induced into voting improperly but who could have otherwise cast a legal ballot will be disenfranchised by this result.

I won't get into the fact at all that it was FRIGGING RUSSIA with whom Trump conspired...  But in any case, there you are - best case scenario.

The following sections are copied directly from the various court findings linked at the bottom.

Civil conspiracy

A civil conspiracy is “a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties ‘to inflict a wrong against or injury upon another’, and ‘an overt act that results in damage.’ ” Hampton v. Hanrahan, 600 F.2d 600, 620–21 (7th Cir.1979), rev’d in part on other grounds, 446 U.S. 754 (1980) (citations omitted). In order to prove the existence of a civil conspiracy, a plaintiff is not required to provide direct evidence of the agreement between the conspirators; circumstantial evidence may provide adequate evidence of a conspiracy.

First Amendment Violation

14. Defendants violated plaintiffs First Amendment rights. The conduct of the defendants violated the plaintiffs’ right of association guaranteed by the First Amendment by engaging in conduct pursuant to a custom and policy which denied plaintiffs and other individuals the freedom to form groups for the advancement of political ideas, as well as the freedom to campaign and vote for the candidates chosen by those groups. See Newcomb v. Brennan, 558 F.2d 825, 828 (7th Cir.), cert. denied, 434 U.S. 968 (1977) (citing Buckley v. Valeo, 424 U.S. 1, 39–59 (1976)); Williams v. Rhodes, 393 U.S. 23, 30 (1968). An election campaign is a means of disseminating ideas as well as attaining political office. See Elections Board v. Socialist Workers Party, 440 U.S. 173, 186 (1979). The defendants intentionally engaged in conduct designed to favor the Democrat Candidate and disfavor the Republican Candidate. Defendants did not act in good faith, and in any event, good faith is not a justification for a constitutional violation. See Trotman v. Board of Trustees of Lincoln University, 635 F.2d 216, 227 (3d Cir.1980), cert. denied, 451 U.S. 986 (1981).

Equal Protection Violation

*33 15. The defendants actions denied plaintiffs their right to equal protection under the law by intentionally and illegally favoring the Democrat Candidate and discriminating against the Republican Candidate, see Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979); polls, defendants targeted Latino and African–American voters to further a conspiracy to secure illegal absentee ballots. Defendant Stinson argues that plaintiffs have alleged illegal activities throughout the Second District and not just in the minority neighborhoods. This is not completely accurate. Defendants initially were conducting illegal absentee ballot activities in the predominantly Caucasian neighborhoods. After the poll results, the Stinson Campaign, in conjunction with the Board, specifically and intentionally employed a race-based scheme to further their conspiracy to elect William Stinson.

Relief  20. Voting is of the most fundamental significance under our constitutional structure. Wesberry v. Sanders, 376 U.S. 1, 17 (1964). The public interest is served when the courts enforce free and fair elections. See Reynolds v. Sims, 377 U.S. 533 (1964). The public interest is served when the integrity of the election process is upheld. Federal courts in shaping equity decrees are “vested with broad discretionary power,” Lemon v. Kurtzman, 411 U.S. 192 (1973) and Donohue v. Bd. of Elections, 435 F.Supp. 957 (E.D.N.Y.1976), and have exercised their powers in enjoining persons from taking office and voiding elections. Bell v. Southwell, 376 F.2d 659, 665 (5th Cir.1969) (election invalidated and candidate enjoined from office); Ury v. Santee, 303 F.Supp. 119 (N.D. Ill.1969) (municipal election invalidated on due process and equal protection grounds and candidates enjoined from office).

As the Supreme Court has stated
Undeniably, the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections. A consistent line of decisions by this Court in cases involving attempts to deny or restrict the right of suffrage has made this indelibly clear. It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote, Ex parte Yarbrough, 110 U.S. 651 [4 S.Ct. 152, 28 L.Ed. 274], and to have their votes counted, United States v. Mosley, 238 U.S. 383 [35 S.Ct. 904, 59 L.Ed. 1355]. Therefore, plaintiffs argue that Marks will, in effect, be punished for the wrongdoing of the defendants. Plaintiffs suggest that the way to deal with election results that are uncertain as a result of fraud is to have the "punishment" fall on the party who perpetrated the fraud. Plaintiffs' arguments, however, [19 F.3d 888] miss the mark. Our primary concern here is not to punish any individual candidate or party, but to promote the public's interest in having legislative power exercised only by those to whom it has been legally delegated. This interest is not served by arbitrarily ignoring the absentee vote, a substantial but undetermined portion of which was either legally cast or came from voters who would have gone to the polls but for the fraud. Just punishment for any wrongdoing that has been perpetrated may be pursued in other proceedings; it is not the objective here. Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 1377-78, 12 L.Ed.2d 506 (1963). These voting rights are potentially violated, however, whenever an individual is sworn in as an elected representative without a demonstration that he or she was the choice of a plurality of the electorate. This is so because the possibility is left open that some other candidate actually received more votes than the declared winner, which would mean that each of the votes cast for this other candidate was ignored. Plaintiffs argue that to require certainty of results here would be unfair to Marks. They note that the district court tentatively found that the wrongdoing of Stinson and the other defendants may have made it impossible to determine who would have won a fair election. Assuming that it is in fact impossible to determine a certain winner, Marks will be forced to endure the hardship of running again if he still wishes to fill the senate seat.

V. REMEDY Having concluded that the district court properly exercised its jurisdiction and that the record supports its findings on the probability of success and irreparable injury, we now turn to the remedy issue. The state elections process recognized Stinson as the winner of the election. While the district court found for purposes of plaintiffs' preliminary injunction motion that wrongdoing affected the election, it did not find, even for that limited purpose, that Stinson's election was attributable to wrongdoing. The district court did not find that Stinson failed to receive a plurality of the legally cast votes.  On the other hand, contrary to plaintiffs' strenuously pressed argument, we do not understand the district court to have concluded that Marks received a plurality of the legally cast ballots. Nor did the district court address the problem created by the fact that some electors who cast tainted absentee ballots undoubtedly would have cast valid votes at the polls had they not been misled (by a conspiracy knowingly supported by state actors) into believing there was a "new way to vote." Thus, while the district court concluded that "no evidence indicates that the machine returns do not reflect the will of the electorate," it did not affirmatively conclude that the winner of the machine vote would have won a plurality of the legal votes cast if the wrongdoing had not occurred. The district court did conclude, with ample record support, that the wrongdoing was substantial, that it could have affected the outcome of the election, and that it rendered the certified vote count an unreliable indicator of the will of the electorate. Having so concluded for the purposes of the preliminary injunction motion, we cannot say that the district court abused its discretion in restraining Stinson from exercising the powers of the office pendente lite.

..........
http://www.leagle.com/decision/199489219F3d873_1759/MARKS%20v.%20STINSON
http://www.leagle.com/decision/199489219F3d873_1759/MARKS%20v.%20STINSON

http://www.clearinghouse.net/chDocs/not_public/VR-PA-0015-0001.pdf

[all district court documents appear to be available at http://www.clearinghouse.net/detail.php?id=4550 ]

Notes: 

Again, I'm not a lawyer, but it hasn't attracted ire from any in the profession thus far.

Please call me on any flawed interpretation or analysis you may find within, though, so I can correct it.

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UPDATE: this is not intended to provide a path to overturn the election results and hand them to Clinton, necessarily; it's far too late for that.  But it is relevant to the line of secession - meaning that Trump, Pence and all of his cabinet would be installed illegitimately, and, as such, should be removed from consideration from the line of succession.