A Constitutional Mulligan? Trump Calls Again for a “Redo” of the 2020 Election

Last week, many of us expressed alarm over a statement by former President Trump that we might have to “terminate” constitutional rules in light of the release of the Twitter files. He has now denied saying that but repeats that the disclosures should mean that the election is “redone.”  There are no constitutional Mulligans in presidential elections.

There is a legitimate demand for an investigation into this scandal and censorship that clearly had some impact on the close election.

However, while I have been a vocal critic of Twitter and the full mobilization of media, political, and corporate interests against Musk, any suggestion that constitutional rules could be terminated or suspended is both dangerous and demagogic.

For that reason, I was glad to see Trump walking back the statement but there remain deeply troubling aspects to the continued call for the election to be “redone.”

On Monday, Trump insisted that he does not want to “terminate” the Constitution:

“The Fake News is actually trying to convince the American People that I said I wanted to ‘terminate’ the Constitution. This is simply more DISINFORMATION & LIES, just like RUSSIA, RUSSIA, RUSSIA, and all of their other HOAXES & SCAMS.”

However, the earlier posting was unequivocal in stating that the Twitter disclosures “allows for the termination of all rules … even those found in the Constitution.”

As I stated at the time, there is no basis for termination or suspension of constitutional rules in such a case. Moreover, the misconduct of one company would never be accepted by a court as grounds for retroactively reevaluating a presidential election two years later.

Notably, there was ample evidence of raw fraud in states like Illinois that may have given Kennedy his victory over Nixon. However, the election was not “redone” in light of those allegations.

In his latest posting, Trump repeated that

“steps must be immediately taken to RIGHT THE WRONG…Simply put, if an election is irrefutably fraudulent, it should go to the rightful winner or, at a minimum, be redone … Where open and blatant fraud is involved, there should be no time limit for change!”

Putting aside the clarification on the call for termination of such rules, there is no basis upon which a court could order an election in 2020 to be “redone.” The implications of such a power are chilling. Such judicial intervention could be used by judges to “redo” future elections when they disapprove of a candidate or party. It is an invitation to judicial activism and would be destabilizing for our constitutional system as a whole.

It is unclear what Trump is now demanding. Should a court declare him the winner and order the start of a new four-year term — negating the 2024 election? Would the court order a vote in 2022 and then another vote in 2024? None of that is even remotely possible on a legal basis.

Moreover, before declaring that the election is to be “redone,” the court would have to not only find that the company engaged in election fraud but that such fraud was determinative or decisive in the election. How does it do that? There were a myriad of issues pushing voters that year. A court could not say with any sense of confidence that Twitter’s conduct determined the outcome.

My concern is that such postings create a false impression for citizens that such a “redo” is possible. It fuels extraconstitutional demands on our system. We have the oldest and most successful constitutional system in history because it is not subject to such improvisation or impulse.