Considered opinionCould we reverse a hacked presidential election?

By Vinay Nayak and Samuel Breidbart

What would happen if we discover that Russians hacked into the results of the 2016 presidential election and tipped the outcome in favor of Donald Trump — literally changed the vote totals?

In the past few weeks, we have learned that the Russian government reached more than 10 million Americans with a misinformation campaign on Facebook, while reaching other voters with disinformation disseminated on Twitter and various Google platforms such as YouTube. Some of the Russian operatives-created ads, messages, and posts touted Trump, while others sought to create a climate favoring his election by spreading disinformation which aimed to sow social discord, increase racial animosity, and deepen ethnic tensions.

The Russian government operatives used techniques from the business world to segment the voting population, and then targeted the avalanche of disinformation to critical voting groups in important swing states.

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Russian government hackers stole emails and documents from the DNC and Hillary Clinton campaign, and then coordinated with Wikileaks the schedule of the publication of some of these emails – some authentic, some doctored – in order to inflict maximum damage on the Clinton campaign. Russian government hackers also targeted 21 state election systems, stealing information from 90,000 voting records in the state of Illinois alone.

Vinay Nayak and Samuel Breidbart write in Vox that are just a few of the many revelations about Russia’s unprecedented interference in the election.

“It is cold comfort that we have no evidence so far that Moscow actually manipulated vote tallies to change the election’s outcome,” they write.

They continue:

But what if it emerges that Russian operatives were successful on that front as well? Setting Trump aside, what if a foreign government succeeds in the future in electing an American president through active vote manipulation?

The Constitution offers no clear way to remedy such a disaster.

Any evidence that the Trump campaign colluded with Russia raises its own set of important issues — now being assiduously investigated by special counsel Robert Mueller. But the disturbing scenario in which hackers manipulate election results, conceivably rendering the true vote tally unrecoverable, would pose a unique threat to a foundational principle of our democracy: rule by the consent of the governed. We would in no sense have a government “by the people.”

Although such a constitutional crisis now seems all too plausible, we have yet to seriously consider provisions that might protect our democracy — measures that could allow us to reverse such a result.

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To avert a constitutional crisis, it is time that we devise a solution to this foreseeable problem. Naturally, any such reform should happen alongside continued efforts to improve our election infrastructure — building better systems for maintaining voter rolls and counting ballots, even as hackers continue to improve their infiltration methods.

We must use the same tools as the founders, law and institution-building, to deter hostile foreign actors and fortify the process for choosing our leaders.

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One way to do so would be to empower Congress to dissolve an illegitimate government and call for a special election. Norm Ornstein, of the American Enterprise Institute, has raised the possibility that Congress could pass legislation providing for a new presidential election — a “do-over” election, in effect. Article II, Section I of the Constitution gives Congress the power to “provide by Law” who shall succeed the president. But as the Constitution is currently written, Congress can only legislate on this issue if the president and vice president are no longer in office due to “Removal, Death, Resignation, or Inability.”

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Another option would be to constitutionally empower the Electoral College to police foreign influence in our elections — even after a new president is inaugurated. The founders explicitly conceived of the Electoral College as a mechanism to prevent an illegitimate president from taking office. In the Federalist Papers, Alexander Hamilton wrote that the Electoral College was designed to check against any “foreign powers [hoping] to gain an improper ascendant in our councils,” and that electors should guard against foreign capture of the presidency in particular.

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We should act before we find ourselves thrust into a constitutional crisis of historic dimensions. But any solution to this issue — most likely in the form of a constitutional amendment — would require bipartisanship in a time of unprecedented polarization. If recent history is any indicator, the Republican-controlled Congress (and Republican-controlled state legislatures) will be unwilling to work with Democrats to remedy this constitutional defect.

In the meantime, our Constitution leaves us powerless to protect against those waiting for the right moment to subvert our electoral system, assuming they have not already done so.

Read the full article: Vinay Nayak and Samuel Breidbart, “Could we reverse a hacked presidential election?”  Vox (12 October 2017)