Before leaving (hopefully) the subject of election do-overs, I should mention that there is one relevant modern “precedent,” of a fashion, which came to my attention after my initial post on the subject. (Hat tip: Steven Shepard of Politico).
The election of November 5, 1974 in Louisiana’s sixth congressional district was between Republican Henson Moore and Democrat Jeff LaCaze. The initial count had Moore leading by 44 votes, but LaCaze was able to obtain a TRO in state court preventing the certification of the results based on an allegedly malfunctioning voting machine. After the issue of the court’s jurisdiction was litigated up to the Louisiana Supreme Court (which upheld it), the trial judge (Judge Shortess) took evidence regarding the voting machine, which he determined was defective and may have changed the outcome of the election. See Melvin A. Shortess & Charles G. Douglas III, State Courts and Federal Elections, 62 A.B.A. J. 451, 453 (1976).
Judge Shortess then concluded that the appropriate remedy was to order a new election for the congressional district (he considered, but rejected, the alternative of rerunning the election in just the precinct affected by the defective voting machine). Review of this decision was sought in the Louisiana Supreme Court, which denied the writ. See LaCaze v. Johnson, 310 So.2d 86 (La. 1974).
A new election was held, which Moore won handily. He was seated by the House, apparently without further controversy. An unusual article co-written by Judge Shortess later claimed that this action by the House showed “by clear implication the House approved the analysis adopted by the state judiciary in Louisiana.” 62 A.B.A. J. at 453.
I would not assign much precedential weight to the House’s silence, particularly as to issues not before it. As far as I can tell, the question whether do-over elections conflict with federal law was not raised even in the Louisiana litigation. Two justices dissented from the denial of review of Judge Shortess’s order of a new election, but they merely argued that the circumstances did not warrant “the drastic step of annulling the entire election.” 310 So.2d at 88 (Dixon, J., dissenting). They did not consider whether federal law prohibited calling a new congressional election when no vacancy existed.
Nonetheless, the Louisiana case provides some support for the proposition that do-over congressional elections may be held, at least when ordered by a court as an extraordinary remedy. However, it is hardly conclusive as to an issue not raised, namely whether a state may provide for a do-over congressional election when, in circumstances it defines, the initial election is deemed unfair or inadequate. This remains very much an open question in my mind.