The Democratic National Committee is suing Russia over the 2016 presidential election and party chairman Tom Perez couldn’t be more pleased. He recently told NBC’s Meet the Press he’s “confident that we will file an amended complaint over time.”
That means more defendants and more allegations could be added. And no wonder: the complaint filed in the U.S. District Court for the Southern District of New York on Friday alleges a grand conspiracy between Russia, the Donald Trump presidential campaign, and WikiLeaks. “I’m punching back for democracy,” Perez proudly said.
Possibly the most accurate headline describing the lawsuit came from the unapologetic purveyor of fake news The Onion. It said: “DNC Files Lawsuit Alleging Nation Should Never, Ever Stop Focusing on 2016 Election.” The Onion followed with a phony Perez quote: “The American people have a right to publicly re-litigate Hillary Clinton’s defeat and promote far-reaching conspiracy theories instead of concentrating on anything remotely politically constructive for the next few decades at least.”
That is at best a slight exaggeration. What is real is that this DNC lawsuit—coming almost two years after Trump beat Hillary—officially makes the 2016 campaign the longest litigated presidential race in history.
In researching my book Tainted by Suspicion: The Secret Deals and Electoral Chaos of Disputed Presidential Elections, I found that litigation in past presidential contests didn’t ever really stretch past March—which is when presidents used to be inaugurated.
Andrew Jackson spent four years railing against the “corrupt bargain” that put John Quincy Adams in the White House, after the House settled the election in 1824 (none of the four candidates that year won a majority of electoral votes). But the Jacksonians didn’t take legal action. Rather, Jackson’s griping became key to building what would become the Democratic Party and then his eventual landslide over Adams in 1828.
Hillary’s endgame is unclear, though she would be right if she ever said no one ever told Andrew Jackson to just go away after 1824.
Samuel Tilden, the 1876 Democratic nominee, did his share of complaining after he lost that year’s election. As I documented here at TAC, House Democrats held hearings into the disputed election eventually awarded to Republican Rutherford B. Hayes after an electoral commission determined in an eight-to-seven party line vote that he won the states of Florida, Louisiana, South Carolina, and Oregon. But it was a less litigious time and Democrats didn’t go to court.
Richard Nixon is lauded for not challenging John F. Kennedy’s shady victory in 1960, though the Republican National Committee—under then-chairman Thruston Morton, a Kentucky senator—did take legal action in several states to demand recounts at the county level. This, of course, included localities in Illinois and Texas, but also Delaware, Michigan, Minnesota, Missouri, New Jersey, New Mexico, Nevada, Pennsylvania, and South Carolina.
Those challenges never had Nixon’s name on them, but the RNC wouldn’t have likely proceeded had the nominee objected. The RNC dropped the recount demands when the Electoral College certified Kennedy’s victory on December 19.
Then there was the 36-day election in 2000 between Republican George W. Bush and Democrat Al Gore, settled when the Supreme Court stepped in. A constitutional remedy in the House of Representatives would have been preferable to a judicial one, although probably less acceptable to the public.
The 2016 DNC challenge is similar to the 1960 RNC one in that the nominee has no fingerprints. “I have not consulted Hillary Clinton to ask her permission to file a complaint,” Perez said Sunday. “The buck stops with Tom Perez.” The big difference is that the DNC isn’t attempting—and has no chance of—overturning the 2016 outcome.
Still, the DNC is seeking financial damages and an admission of responsibility, alleging that the “conspiracy constituted an act of previously unimaginable treachery: the campaign of the presidential nominee of a major party in league with a hostile foreign power to bolster its own chance to win the presidency.” And more importantly, a major party is trying through the courts to delegitimize an election it lost rather than focus on winning in the coming years. Frivolous lawsuits challenging election results have been tossed around in the past, but it’s almost unheard of for a national party to take up the mantle.
Pressed on why now, Perez said: “A year ago, people were saying file a lawsuit then. I didn’t do that because I believe in doing your homework. And in the course of the last year, we have seen I think a mountain of evidence of collusion between the campaign and the Russians.”
There is still much we don’t know. But it seems unlikely on the surface that the DNC will be able to obtain more information through a civil suit than Mueller can through a criminal probe.
On the other hand, the lawsuit will likely accomplish two things. First, it will fire up the #Resistance and the DNC’s liberal base. Second, it will present the opportunity for discovery, which means a judge could compel testimony and document production. Team Trump has already said discovery can work both ways—they see an opening for extracting information about the DNC regarding the Fusion GPS anti-Trump dossier.
Meaning this lawsuit could bring more wonderful political theater for months or even years to come—perhaps even after Mueller wraps up his investigation.
The Onion’s prediction of “decades at least” probably won’t come to fruition. In fact, it might fade before 2020 if the lawsuit is truly a fundraising stunt, as the Trump campaign charges. Still, it certainly establishes a new record for legally challenging the legitimacy of a duly elected president.
Fred Lucas is the White House correspondent for the Daily Signal, and author of Tainted by Suspicion: The Secret Deals and Electoral Chaos of Disputed Presidential Elections. The views expressed are solely his own. Title and publications listed are for identification purposes only.