In disputed elections Congress gets to choose. Usually they defer to state authorities, but in this case I doubt they will. Unless the virus specifically targeted Hoffman it’s unlikely it affected the election outcome because Owens votes would suffer the same fate as Hoffman votes. And it’s unlikely the state would certify Hoffman without crystal clear evidence he actually got more votes on election day. — Secretary of State Lorraine A. Cortés-Vázquez is a Democrat.

In general it shows that pure electronic voting systems are not a great idea. Detroit uses optical scanners. They can electronically count the votes, but if there’s a dispute a hand recount is still possible. They’re also nice because you only need one per polling place, and even if it’s not working people can still fill out their ballots.

Fortunately for everyone, Hoffman does indeed appear to be a loser for sure.

What’s interesting to me about this computer virus issue is this: If Hoffman had not conceded and had sent lawyers and watchers into the official recanvas, his people would have found out about the virus in the course of the recanvas, while presumably Owens was not sworn in. And the virus issue might then have led to battles over how to resolve it with who knows what outcome.

Candidates should never concede when results are incomplete and the votes still outstanding surpass the election night margin as reported by the press consortium. I mean, really, who cares except TV reporters whether someone concedes? And you can alwyas go out at 2am and say something like, it appears my opponent has won and if so I wish him well, but we’re going to wait to see the full results before making it official.

“[T]he political question doctrine restrains courts from reviewing an exercise of … judgment by the coordinate political branch to which authority to make that judgment has been ‘constitutional[ly] commit[ted].’” Goldwater v. Carter, 444 U.S. 996, 1006 (1979) (Brennan, J., dissenting) (alteration in original) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). Thus, courts will deem an issue “nonjusticiable—i.e., [that it] involves a political question—where there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it….” Nixon v. United States, 506 U.S. 224, 228 (1993) (quoting Baker, supra, at 217))

Article 1 § 5 seems to commit the instant issue to Congress: “Each House shall be the judge of the elections, returns and qualifications of its own members.” On its face, that clause gives Congress domain over three classes of issues. And we know from Powell v. McCormack that one of those three is a “textually demonstrable commitment” to Congress: to judge members’ compliance with the Constitutionally-required qualifications. 395 U.S. 486, 548 (1969). So for one, so for all. By parity of reasoning, since section five commits questions about the constitutionally-enumerated qualifications of members of Congress to Congress, it must also commit questions of members’ elections and returns to Congress. When the House seated Owens, it necessarily exercised its power to judge the election, and since the courts are out of the picture, Hoffman would have to persuade the Democratic leadership of the House to reverse course.

Presumably, some principle must limit this power. But I don’t know what it is, and I don’t know how 2 U.S.C. § 382′s contest process, which appears to assume the context of a regular election, applies in the case of a special election where the putative winner has already been seated.

Ladies and Gentlemen, I give you the humble #2 pencil and a printed ballot paper.