What if the 2020 Presidential Election is Disputed?

An Expert Roundtable Discussion

MAY 4, 2020

 

Pull up a (virtual) seat as a panel of nationally recognized legal scholars, political scientists, and experts in election administration, Electoral College procedures, and presidential succession grapples with the legal issues that could arise in a series of hypothetical scenarios involving the 2020 presidential election.

The conversations will be divided into three distinct time frames from Election Day to Inauguration Day when complex legal issues could test our electoral process in new and serious ways.

This event is not merely an academic exercise, but an effort to identify the potential legal risks looming over the election and spark a national discussion about how we can put our country in a better position to handle similar scenarios should they arise.

POST-EVENT COVERAGE

Edward Foley’s summary of the day’s event

Louis Jacobson’s analysis in the Cook Political Report

Todd Ruger’s article in Roll Call

RECORDING of the Zoom Webinar.

(We have reviewed and edited the audio transcript to correct errors; some transcription errors may still exist.)

Session One | 11:00 AM – 12:30 PM (EDT)
From Election Day (Nov 3) to Meeting of Electors (Dec 14) 
Hypothetical scenarios: 

1.1 Philadelphians experienced delays receiving absentee ballots
1.2 Michigan’s election night results flip after “late counted” ballots
1.3 Florida hurricane prevented voting on Election Day 

Session Two 1:00 PM – 2:30 PM (EDT)
From Meeting of Electors (Dec 14) to Joint Session of Congress (Jan 6) 
Hypothetical scenarios: 

2.1 Pennsylvania sends two conflicting sets of electoral votes to Congress
2.2 Michigan also sends two conflicting sets, but raising different issues
2.3 Florida legislature appoints its electors after no election is held 

Session Three | 3:00 PM – 4:30 PM (EDT)
From Joint Session of Congress (Jan 6) to Inauguration Day (Jan 20) 
Hypothetical scenarios: 

3.1 House and Senate are divided on which sets of electoral votes to accept from Pennsylvania and Michigan
3.2 Congress decides to invalidate Florida’s electoral votes; what happens to Electoral College math? 
3.3 Can Mike Pence preside over the Joint Session of Congress in an Electoral College dispute? 

BACKGROUND RESOURCES

While the hypothetical scenarios are the most important background resources, you may also wish to consult the following materials.

The U.S. Code and The Constitution

(These links will take you to the Legal Information Institute at Cornell Law School)

3 U.S. Code CHAPTER 1—PRESIDENTIAL ELECTIONS AND VACANCIES

§ 5. Determination of controversy as to appointment of electors

§ 6. Credentials of electors; transmission to Archivist of the United States and to Congress; public inspection

§ 9. Certificates of votes for President and Vice President

§ 15. Counting electoral votes in Congress

Amendment XII [Election of President and Vice-President (1804)]

Amendment XX [Presidential Term and Succession (1933)]

Other Resources

Foley, Edward B., APPENDIX to Preparing for a Disputed Presidential Election, 51 Loyola University Chicago Law Journal 309 (2019).

Ad Hoc Committee for 2020 Election Fairness and Legitimacy (convened by Richard L. Hasen), Fair Elections During a Crisis:  Urgent Recommendations in Law, Media, Politics, and Tech to Advance the Legitimacy of, and the Public’s Confidence in, the November 2020 U.S. Elections (April 2020).

Supreme Court opinion of April 6, 2020 in RNC vs DNC.

MODERATORS

Edward B. FoleyCharles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law, Moritz College of Law, The Ohio State University 

Steven F. Huefner | C. William O’Neill Professor in Law and Judicial Administration; Senior Fellow, Election Law, Moritz College of Law, The Ohio State University 

PARTICIPANTS

CLICK HERE to view Participant Bios

Barry C. Burden | Professor of Political Science; Director, Elections Research Center, University of Wisconsin-Madison 

Joshua A. DouglasThomas P. Lewis Professor of Law, Rosenberg College of Law, University of Kentucky 

Lawrence R. Douglas James J. Grosfeld Professor of Law, Jurisprudence and Social Thought, Amherst College 

Terri L. Enns Clinical Professor of Law; Senior Fellow, Election Law, Moritz College of Law, The Ohio State University 

John C. Fortier Director of Governmental Studies, Bipartisan Policy Center 

Elizabeth Goitein | Co-Director, Liberty & National Security Program, Brennan Center for Justice 

Joel K. Goldstein Vincent C. Immel Professor of Law, Saint Louis University School of Law 

Trey Grayson Attorney at LawFrost Brown Todd LLCformer Secretary of State for the Commonwealth of Kentucky 

Rebecca Green Professor of the Practice of Law, Kelly Professor of Excellence in Teaching, Co-Director of the Election Law Program, William & Mary Law School 

Richard L. Hasen Chancellor’s Professor of Law and Political Science, UC Irvine School of Law 

Samuel IssacharoffBonnie and Richard Reiss Professor of Constitutional Law, New York University School of Law  

Martin S. Lederman Professor from Practice, Georgetown LawSenior Fellow of the Georgetown Law Center Supreme Court Institute 

Justin Levitt Associate Dean for Research, Professor of Law, Loyola Law School 

Lisa ManheimCharles I. Stone Associate Professor of Law, University of Washington School of Law 

Matthew MastersonSenior Cybersecurity Advisor, Department of Homeland Security 

Michael T. MorleyAssistant Professor, Florida State University College of Law 

Derek T. MullerProfessor of Law, Caruso School of Law, Pepperdine University 

Genevieve Nadeau | Counsel, Protect Democracy 

Adav Noti | Senior Director, Trial Litigation & Chief of Staff, Campaign Legal Center 

Norman J. OrnsteinResident Scholar, American Enterprise Institute 

Richard H. Pildes Sudler Family Professor of Constitutional Law, New York University School of Law 

Bertrall Ross Chancellor’s Professor of Law at the University of California Berkeley School of Law 

Dakota S. Rudesill Assistant Professor, Moritz College of Law, The Ohio State University 

Larry Schwartztol Counsel, Protect Democracy 

Kate Shaw Professor of Law, Benjamin N. Cardozo School of Law 

Paul M. Smith VP for Litigation & Strategy, Campaign Legal Center; Professor from Practice, Georgetown Law 

Daniel P. Tokaji Associate Dean for Faculty; Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law, Moritz College of Law, The Ohio State University 

Franita TolsonVice Dean for Faculty and Academic Affairs, and Professor of Law, USC Gould School of Law