No, Donald Trump Cannot Void Iowa Caucus Based on Cruz’s Alleged Lies: Explained

The Washington Post recaps a series of tweets by Donald Trump this morning in which he calls for a do-over of the Iowa caucuses based on a claim that Ted Cruz “stole” the election. (Trump initially said “illegally” stole the election but then deleted that word).

The basis for the argument appears to be: (1) Cruz campaign telling people just before voting that Ben Carson was dropping out (he wasn’t, though the situation was unclear at the time) and (2) those “voter violation” mailers intended to shame voters into voting. (There was some evidence these mailers incorrectly stated people did not vote when they didn’t).

Even if both of these activities by Cruz count as false campaign speech, any claim by Trump to an election do-over would almost certainly fail. To begin with, there is no federal law (and no state Iowa law I’m aware of) against lying in campaigns. further, the appropriate remedy for a lie in a campaign is most likely counter speech, not an election do over, thanks to the First Amendment. Indeed, as I explain in this law review article, A Constitutional Right to Lie in Campaigns and Elections?, the Supreme Court and lower courts have been very wary of allowing the government to determine when campaign speech is false.  To the extent there are defamatory statements made with actual malice (that is a false statement damaging a candidate’s reputation, made with knowledge of its falsity or with reckless disregard as to its truth or falsity), there may be a basis for a damage claim, not an election do-over.

Now we might have a different rule regarding lies about the election itself. For example, if Cruz sent emails to Trump supporters telling them the wrong polling place or date, there might constitutionally be a remedy for that. But there’s no evidence of any of that in this election.

So to recap: no law against what Cruz did, and no remedy of a do-over even if it can be proven that the campaign speech was a lie.  Got it?

Update: Ned Foley helpfully points out that the party at its convention might choose a remedy related to delegates in the event of chicanery. But that would not be a legal process in court.

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