Can a redo be held for a presidential election? (2024)

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A redo election, also known as a revote or special election remedy, is the process of voiding election results and holding a new election. The specific reasons for calling a redo election vary, but might include deliberate efforts to obscure the results such as electoral fraud or mistakes like a broken voting machine.

As of 2024, no state or county had held a presidential redo election. Whether they could was an open question. In 2017, FiveThirtyEight's Julia Azari wrote, "[W]hether this kind of re-do is allowed for presidential elections is a more complicated matter. Some legal scholars maintain that the language in Article II of the Constitution prevents holding a presidential election again ... Others suggest that there is legal precedent for a presidential re-vote if there were flaws in the process."

The following court cases addressed the legality of a presidential redo election:

Fladell v. Palm Beach County Canvassing Board (2000)

Following the 2000 presidential election in Florida between Al Gore (D) and George W. Bush (R), voters in Palm Beach County filed a lawsuit in Florida's 15th Circuit Court before Judge Jorge Labarga. Plaintiffs asked for a redo election, alleging that the layout of the ballot used in Palm Beach County did not comply with state law resulting in voter confusion and mistaken votes. In a previous hearing, the case was split in two with the first hearing to decide whether a presidential redo election was legal. If so, the second hearing would have addressed the facts of the case relating to the ballot layout. During the first hearing, Labarga decided "it is not legally possible to have a re-vote or new election for Presidential electors in Florida."

Labarga based his decision on the U.S. Constitution, federal law, and a 1997 U.S. Supreme Court case, Foster v. Love.

Labarga first cited Article II, Section 1 of the U.S. Constitution, which reads, in part, as follows: "The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States." He then cited Title 3, Chapter 1 of the U.S. Code, specifically sections 1, 2, and 5, which set a uniform federal Election Day on the Tuesday after the first Monday in November. The cited laws allow states to establish procedures to account for controversies over election results, but Labarga determined that Florida had no such procedures in its statutes.

Finally, Labarga referenced Foster v. Love, a U.S. Supreme Court case that struck down a Louisiana law that scheduled an election in October before Election Day. Under Louisiana's arrangement, if no candidate received a majority vote in the October election, the top two vote-getters would participate in a second election on Election Day in November. If a candidate in the October election received a majority vote, they would win the election outright. The Supreme Court ruled that this set-up violated federal law because a candidate could win outright before Election Day effectively creating a federal election in Louisiana before the congressionally established Election Day. Justice David Souter wrote that the federal law setting a single Election Day "mandates holding all elections for Congress and the Presidency on a single day throughout the Union." Labarga interpreted this to mean a presidential redo election occurring on some date after Election Day was not feasible in Florida.

Labarga was a Gov. Lawton Chiles (D) appointee. Click here to read the full decision.

Donohue v. Board of Election of the State of New York (1976)

Following the 1976 presidential election in New York between incumbent Gerald Ford (R) and Jimmy Carter (D), Republican and Conservative Party supporters filed a lawsuit in the Eastern District of New York asking for a redo election. According to Judge Jacob Mishler's final order, the plaintiffs alleged "that state officials ... committed fraudulent acts in the conduct of voter registration and the subsequent general Presidential election which served to deprive them of their constitutionally protected right to vote."

Mishler did not decide whether a presidential redo election could be called because he dismissed the case after deciding the plaintiffs failed to prove fraud had occurred. Even if fraud occurred, the number of affected votes would not have changed the outcome. However, Mishler wrote, "[F]ederal courts in the past have not hesitated to take jurisdiction over constitutional challenges to the validity of local elections and, where necessary, order new elections. The fact that a national election might require judicial intervention ... if anything, militates in favor of interpreting the equity jurisdiction of the federal courts to include challenges to Presidential elections."

Mishler was a Dwight Eisenhower (R) appointee. Click here to read the full decision.

See also

• What are the steps and deadlines for electing the President of the United States?
• Can presidential candidates win the election if they have already conceded?
• What happens if a presidential nominee becomes incapacitated before the election?
• What happens if the winning presidential candidate becomes incapacitated before taking office?
• What happens if a presidential candidate declares victory in the 2024 election before results are final?