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
§ 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. Foley | Charles 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. Douglas | Thomas 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 Law, Frost Brown Todd LLC; former 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 Issacharoff | Bonnie and Richard Reiss Professor of Constitutional Law, New York University School of Law
Martin S. Lederman | Professor from Practice, Georgetown Law; Senior Fellow of the Georgetown Law Center Supreme Court Institute
Justin Levitt | Associate Dean for Research, Professor of Law, Loyola Law School
Lisa Manheim | Charles I. Stone Associate Professor of Law, University of Washington School of Law
Matthew Masterson | Senior Cybersecurity Advisor, Department of Homeland Security
Michael T. Morley | Assistant Professor, Florida State University College of Law
Derek T. Muller | Professor 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. Ornstein | Resident 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 Tolson | Vice Dean for Faculty and Academic Affairs, and Professor of Law, USC Gould School of Law