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Washington Post interview with Ned Foley (October 27, 2020)

 

Recent articles authored by Election Law at Ohio State Faculty Experts

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How Congress should fix the Supreme Court’s damage to the Voting Rights Act
Edward B. Foley
Washington Post | Opinion | July 8, 2021

Manchin’s voting rights compromise is great — except it doesn’t take on ‘election subversion’
Edward B. Foley
Washington Post | Opinion | June 18, 2021

How Joe Manchin could escape the trap he set for himself
Edward B. Foley
Washington Post | Opinion | June 11, 2021

Democrats are wasting time pursuing their dream elections reform bill. Here’s a better path.
Edward B. Foley
Washington Post | Opinion | May 27, 2021

Democrats have a chance to expand voter access. But they’re focusing on the wrong bill.
Edward B. Foley
Washington Post | Opinion | March 29, 2021

Saving voting rights is an emergency. Here’s a modest fix Republicans might support.
Edward B. Foley
Washington Post | Opinion | March 8, 2021

Why Congress should require its members to be elected by a majority of votes
Edward B. Foley
Washington Post | Opinion | March 5, 2021

Congress should make a deal to end partisan gerrymandering
Edward B. Foley
Washington Post | Opinion | February 4, 2021

Prosecuting Trump for the Capitol riot will be difficult — but not impossible
Edward B. Foley
Washington Post | Opinion | January 14, 2021

The Constitution is strong enough to withstand a delayed electoral count
Edward B. Foley
Washington Post | Opinion | January 6, 2021

Cruz disrupting the electoral college count won’t change anything. It can still hurt democracy.
Edward B. Foley
Washington Post | Opinion | January 2, 2021

Sorry, President Trump. January 6 is not an election do-over.
Edward B. Foley
Washington Post | Opinion | December 29, 2020

It’s time for Mike Pence to choose: Trump, or the truth
Edward B. Foley
Washington Post | Opinion | December 22, 2020

It’s over. When the electoral college announces Biden’s win, Republicans must move on.
Edward B. Foley
Washington Post | Opinion | December 13, 2020

Congress must fix this election law — before it’s too late
Edward B. Foley
Washington Post | Opinion | December 2, 2020

This unnerving election does not bode well for the next one
Edward B. Foley
Washington Post | Opinion | November 24, 2020

If the losing party won’t accept defeat, democracy is dead
Edward B. Foley
Washington Post | Opinion | November 19, 2020

Trump’s originalist judges should reject his lawsuits usurping states’ rights. The framers would.
Edward B. Foley
Washington Post | Opinion | November 13, 2020

Relax. Biden will be sworn in Jan. 20.
Edward B. Foley
Washington Post | Opinion | November 11, 2020

The repugnant plan brewing for state legislatures to steal the election must be stopped
Edward B. Foley
Washington Post | Opinion | November 6, 2020

Trump wants the courts to stop the counting. He’s going to be disappointed.
Edward B. Foley
Washington Post | Opinion | November 4, 2020

The Supreme Court has remained surprisingly centrist on voting rights. That’s a pleasant surprise.
Edward B. Foley
Washington Post | Opinion | October 29, 2020

What kind of conservative will Amy Coney Barrett be? The election could depend on it.
Edward B. Foley
Washington Post | Opinion | October 26, 2020

Could Trump contest even a landslide? That depends on his fellow Republicans.
Edward B. Foley
Washington Post | Opinion | October 23, 2020

The Supreme Court ruling on ballot deadlines may be more of a reprieve for Democrats than a win
Edward B. Foley
Washington Post | Opinion | October 20, 2020

Think the Constitution protects your right to vote? That’s not really true — but it should.
Edward B. Foley
Washington Post | Opinion | October 19, 2020

How to avoid Bush v. Gore 2.0
Edward B. Foley
Washington Post | Opinion | October 12, 2020

Think the Constitution lets voters pick the president? Better read it again.
Edward B. Foley
Washington Post | Opinion | October 5, 2020

Three easy steps to help prevent a calamitous election failure
Edward B. Foley
Washington Post | Opinion | September 29, 2020

How to Know if the Election Is Actually ‘Rigged’
Edward B. Foley
Politico | Opinion | September 13, 2020

The Terrifying Inadequacy of American Election Law
Larry Diamond and Edward B. Foley
The Atlantic | September 9, 2020

Vote early and often? That’ll just slow down the ballot count.
Edward B. Foley
Washington Post | Perspective | September 4, 2020

A November Nightmare Part I: What If Mailed Ballots Are Never Counted?
Edward B. Foley
Harvard Law Review Blog | August 30, 2020

If we don’t dispel the falsehood of an election ‘delay’ now, we risk chaos in November
Joanne Lipman and Edward B. Foley
Washington Post | Opinion | August 19, 2020

How Congress could diminish the risks with Electoral College count
Richard Pildes and Edward Foley, Opinion Contributors
The Hill | August 13, 2020

America has to count on more than prayer in the case of close election
Edward Foley, Opinion Contributor
The Hill | July 16, 2020

Supreme Court ‘faithless electors’ ruling aims to stabilize the election, but will it work?
Edward B. Foley
USA Today | Opinion | July 6, 2020

How to avoid hours-long waits to cast ballots on Election Day
Edward B. Foley
Washington Post | Opinion | June 11, 2020

The Simplest Way to Avoid a Wisconsin-Style Fiasco on Election Day
Edward B. Foley and Steven F. Huefner
Politico | April 21, 2020

Is It Ever OK for a President to Ask a Foreign Country to Investigate a Political Rival?
Edward B. Foley
Politico Magazine | October 6, 2019

What if 2020 election is disputed?
Edward Foley and Michael McConnell, Opinion Contributors
The Hill | May 24, 2019

An Idea for Electoral College Reform That Both Parties Might Actually Like
Edward B. Foley
Politico Magazine | January 12, 2019

Some recent articles quoting/mentioning Election Law at Ohio State Faculty Experts

First look: Battleground imbalance
Stef W. Kight
Axios | July 25, 2021

“If a lack of competitiveness is caused by gerrymandering, that’s really bad for voters and for democracy, and we’d like to squeeze that out of the system,” Ned Foley, an Ohio State University redistricting and election expert, told Axios.

The data: Researchers at Ohio State looked at the 2020 Biden-Trump election margin for every U.S. House district using data from the Cook Political Report. Then they computed an average for each state. Next, they compared the average to the Biden-Trump margin for the state overall. They viewed that as a way to measure whether states have disproportionately uncompetitive districts.

What’s keeping democracy experts up most at night? An overturned election
Benjy Sarlin
NBCNews.com | July 5, 2021

“Obviously the insurrection was horrific in its violence and assault on democracy, but it didn’t disrupt the true winner of the election,” said Edward B. Foley, a professor at Moritz College of Law at Ohio State University who researches election law. “What you don’t want is it to have been a rehearsal.”

It’s time to change how we count electoral votes
Editorial Board
Washington Post | January 9, 2021

So, too, are a number of additional updates to the Electoral Count Act, suggested not only by Mr. Glennon but also by Ohio State election law expert Edward B. Foley and others, that could help eliminate opportunities for partisan mischief of the kind that destabilized the country on Jan. 6. A large bipartisan majority of Congress has refused an opportunity to usurp power the Constitution assigns to someone else, evidence of that majority’s civic responsibility. Now, they should write it into law.

How to Ensure This Never Happens Again
Beverly Gage and Emily Bazelon
The New York Times | January 8, 2021

The 1887 Electoral Count Act, which is supposed to govern the resolution of a disputed presidential election, is “impenetrable or, at the very least, indeterminate,” according to Edward B. Foley, a scholar who has spent his career studying it. If we’re stuck with the Electoral College, we should at least make the rules for how it operates in the event of a dispute crystal clear.

With time running out, Trump and GOP allies turn up pressure on Supreme Court in election assault
David Nakamura and Robert Barnes
Washington Post | December 10, 2020

Edward B. Foley, an election law professor at Ohio State University, said the court is likely to view the Texas filing as far different from the 2000 election dispute between George W. Bush and Al Gore, which was decided after the Supreme Court ruled in Bush’s favor on a small number of disputed ballots in Florida.

The court would be “especially sensitive to making sure it isn’t beholden to political pressure” from Trump, Foley said, suggesting a bigger concern over the president’s relentless assault on the election system is that it has won support from a significant number of Republicans.

The Texas effort “will not make a difference who is inaugurated, but the optics look very different depending on how many Republicans object to Biden’s election on the record,” Foley said.

‘People Will Stop Believing in the Process.’ Why Donald Trump’s Legal Strategy Is Dangerous Even If It’s Likely to Fail
Alana Abramson and Tessa Berenson
Time | November 18, 2020

The Trump campaign’s legal strategy is “not going to stop Biden from being president; it’s going to be corrosive,” says Ned Foley, director of the election law program at The Ohio State University. “If each and every time we can’t acknowledge the validity of the opponent’s win, then at some point people will stop believing in the process and accepting it.”

What Is Trump Playing At?
Thomas B. Edsall
New York Times | Opinion | November 11, 2020

Wilentz and others argue that Trump is gearing up to violate a principle of peaceful transition established shortly after the founding of the nation.

“You have to go back to the very odd and dangerous election of 1800 for anything remotely similar,” Ned Foley, a constitutional scholar and professor of law at Ohio State, told me via email:

The Federalist Party considered various scenarios for depriving Thomas Jefferson of the presidency, including the possibility of a Federalist acting president if the House remained deadlocked over the tie.

What happens after Election Day? The process is longer (and more unclear) than you might think.
Roey Hadar
Washington Week | November 3, 2020

“There is never any official result on Election Night,” says Edward Foley, a law professor at Ohio State University who directs the school’s election law program. “The only thing we ever have on election night are projections because official results only come from the certification of results that officials do and that takes two to three weeks.”…

Foley has written extensively about the concept of a “Blue Shift,” the idea that results from Election Day may favor Republicans, while later results from tabulating early and mail-in ballots would favor Democrats.

Counting votes on Election Day has always been complex—and it may be more so in 2020
Amy McKeever
National Geographic | October 29, 2020

In some states, this means that officials may not be able to finish counting mailed ballots by the end of Election Day, says Steven Huefner, deputy director of Election Law at Ohio State, a nonpartisan program at The Ohio State University. If the election results in other states are decisive in favor of one candidate, however, news organizations would still be able to project a winner fairly quickly.

But in a close or contested race—particularly in a battleground state such as Pennsylvania or Wisconsin—it could mean long delays in determining a winner as the states finish their counts and then review and certify their results. “If it’s incredibly close then we really can’t declare who has won,” Huefner says. “The 2000 election in Florida is the poster child for that.”

How Far Might Trump Go?
Thomas B. Edsall
New York Times | Opinion | October 28, 2020

On election night and the days that follow, the country may be in for a roller-coaster ride, with ups and downs that raise and dash expectations, provoking anger and frustration.

Here is a scenario, sketched out by Edward B. Foley, a professor of constitutional law at Ohio State, in his 2019 paper “Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management.”

Foley presents a hypothetical widely discussed by election experts — with an outcome that hangs on the willingness of Republican-controlled legislatures to support Trump in the event that he loses the popular vote and refuses to commit to a peaceful transfer of power, as he has frequently threatened.

If election result isn’t certain, an unclear 1887 law could help decide the Presidency (includes video)
Geoff Redick
WSYX ABC6 News | October 16, 2020

Election law experts agree, the worst-case scenario comes down to a murky 1887 law, authored a decade after a hotly-contested election nearly resulted in two competing inaugurations. Steven Huefner, a professor and expert in election law with The Ohio State University, says Americans are lucky to have little experience with such closely-contested races.

“The 1876 presidential election between (Rutherford B.) Hayes and (Samuel) Tilden — that was contested all the way until two days before the inauguration,” Huefner explains. “It was an extremely close election, with some competing certificates of election from several states.”

Election Night Has Paths to a Fast Result—or a Lengthy Slog
Mark Niquette
Bloomberg | October 14, 2020

Most litigation over significant elections in the last 50 years has been over absentee ballots because “it’s the easiest thing to fight over,” said Edward Foley, a professor and director of an election-law program at Ohio State University who has studied disputed elections.

Mail-in voting is necessary, but should you do it?
Ohio State Insights | October 2020

“When there are genuine health risks to gathering in person at a polling place, we have to provide the mail-in option to anyone who wants it,” said Steve Huefner, the deputy director of the election law program in Ohio State’s Moritz College of Law. “And then we need to do all we can to make sure that the mail-in option is an effective one for people.”

That means a consistent, simple process with clear rules, according to Huefner, to ensure all these votes are counted. Unfortunately, the primary season earlier this year exposed that the mail-in voting process didn’t always meet these standards.

Vote Smarter 2020: Does Mail-In Voting Favor One Party Over The Other? (includes video)
Stephanie Liebergen
Newsy | October 13, 2020

“I think if the public realizes that only 50% of the ballots have been counted, and that there’s another 50% to go, that’s a different dynamic than thinking, ‘Oh, well, we’re supposed to know the answer tonight,'” said Edward Foley, director of the election law program at Ohio State University’s Moritz College of Law.

How Likely Is Election Doomsday?
Lisa Lerer
The New York Times | October 1, 2020

Ned Foley, an election law expert at Ohio State, compared the traditional norm of holding elections and counting votes to gravity, a force strong enough that no candidate should be able to escape it. But, he said, “if polarization gets energized enough, it could get enough momentum to have escape velocity.” Mr. Foley should know — he’s been involved in bipartisan efforts to game out various nightmare scenarios. “Once you’re in that hyper-contestation mode and you reach exit velocity, all bets are off.”

The Election That Could Break America
Barton Gellman
The Atlantic | November 2020 Issue

Edward Foley, an Ohio State professor of constitutional law and a specialist in election law, pioneered research on the blue shift. He found a previously un­remarked-upon pattern in the overtime count—the canvass after Election Night that tallies late-reporting precincts, un­processed absentee votes, and provisional ballots cast by voters whose eligibility needed to be confirmed. …

Foley, the Ohio State election scholar, has mapped the ripple effects if Republican legislators were to appoint Trump electors in defiance of the vote in states like Pennsylvania and Michigan. The Democratic governors would respond by certifying the official count, a routine exercise of their authority, and they would argue that legislators could not lawfully choose different electors after the vote had taken place. Their “certificates of ascertainment,” dispatched to the National Archives, would say that their states had appointed electors committed to Biden. Each competing set of electors would have the imprimatur of one branch of state government.

The Legal Fight Awaiting Us After the Election
Jeffrey Toobin
The New Yorker | September 21, 2020

In the days following Election Night, there is likely to be an increasing disparity between the initial poll tallies and the numbers that include mail-in votes. This is not exactly new. According to Edward B. Foley, a professor at the Ohio State University Moritz College of Law, for most of the twentieth century, the preliminary count on Election Night was about ninety-nine per cent of the total count, but, even before covid, “a new normal developed, because of greater reliance on vote by mail.” …

There is nothing sinister about the fact that Democrats use mail-in voting more than Republicans do. Foley’s concern is that Trump will claim that the blue shift, if it occurs, is evidence of partisan foul play, particularly if it eliminates an apparent Election Night lead in an important state. (Some Democrats have deemed a possible Trump lead on Election Night the “red mirage.”) “If the votes keep shifting, Trump may demand that the Election Night numbers be certified, because he doesn’t trust the mail-ins,” Foley said.

“We’re likely to see a significantly dramatic blue shift in multiple states because of the virus and the political response to the virus,” said Edward Foley, an election law expert at Ohio State University, who coined the term “blue shift.”

“How will the public process the concept that election night may end in uncertainty, and this phenomenon is not fraud, it’s just the counting process?” he said.

Fearing Delays and Chaos, Swing States Weigh Early Counting of Mail-In Ballots
Elaine S. Povich
PEW Stateline | August 28, 2020

While absentee voting issues such as slow mail delivery and ballot security have received a great deal of attention, fewer people are aware of looming delays in vote counting, said Edward B. Foley, law professor and director of the election law program at Ohio State University.

“The counting issues tend to get pushed to the side,” Foley said. “That can be dangerous if the counting process becomes contested and you haven’t addressed it.”

What Happens if Donald Trump Fights the Election Results?
Eric Lach
The New Yorker | August 21, 2020

What ensued is a mostly forgotten episode of American misgovernment that has lately been haunting Foley and other academics, as well as a loose network of bipartisan ex-officials, activists, and think-tank types, who are now contemplating the potential for a disputed election in the present day, at our own fraught political moment. The three Southern states in 1876 each sent Congress two pieces of paper, one from Republican electors certifying that Hayes had won the election, the other from Democratic electors certifying that Tilden had. The crisis these pieces of paper provoked, as Congress tried to reconcile their competing claims, pushed America’s constitutional order to its breaking point—or perhaps, looked at from another angle, it was a reflection of an order that had already broken down.

Supreme Court social-distances from coronavirus decisions
Dan Berman
CNN.com | August 14, 2020

The court has sought to avoid destabilizing the electoral process at the last minute, to avoid confusing voters, said Ned Foley, director of the election law program at Ohio State University, noting the so-called “Purcell Principle,” referring to a 2006 decision. But “it’s been a challenge to apply this year because Covid itself has caused change.”… “They’re not slamming the door closed to litigation, but saying there’s a very strong presumption to let state officials decide how to run their own election,” Foley said. “Anyone who wants to change what the state is doing at the last minute bears a heavy burden.”

Supreme Court blocks GOP bid to restore Rhode Island ballot rules waived because of virus
Josh Gerstein
Politico | August 13, 2020

Ohio State University law professor Ned Foley said the decision sends a signal that the justices are trying to adhere to a principle the court set out in a 2006 Arizona case, Purcell v. Gonzalez. There, the court said that last-minute, court-ordered changes to election procedures are strongly disfavored.

“In terms of this year and Covid, this is a new and important development and helps explain the totality of the court’s position in all of these cases,” Foley said. “The court also explains that a key fact is the state government’s own view of the matter, since the Purcell principle is designed to protect the administration of elections from destabilizing judicially caused changes too close to the casting of ballots. I think the court offered its brief explanation in this case in order to highlight that important factor.”

Vote Counts Change. Please Don’t Panic.
Jesse Wegman
New York Times | Opinion | August 11, 2020

The blue shift refers to the tendency of votes counted after Election Day — mostly absentee and provisional ballots — to skew in favor of the Democratic presidential candidate. This has happened in each of the past four elections, according to Edward Foley, an election law scholar at Moritz College of Law at the Ohio State University. Mr. Foley coined the term after the 2012 election, when he was trying to predict which closely contested states might become the focus of legal challenges by one or the other political party.

The ‘Blue Shift’ Will Decide the Election
David A. Graham
The Atlantic | August 10, 2020

In 2012, while watching the Ohio returns, Foley wondered what effect votes counted after Election Day might have. He found something astonishing. Looking at five battleground states, Foley discovered that from 1960 to 2000, there’d always been some change between the Election Night tally and the final results, usually in the hundreds or thousands of votes, and sometimes favoring either party. Starting in 2004, the size of the shifts had become reliably Democratic and significantly larger—nearly 80,000 votes in Virginia in 2008. Foley christened this effect the “blue shift.”

Enlist George W. Bush and Al Gore to help us prevent a Trump-Biden nightmare in 2020
Norman Ornstein
USA Today | Opinion | August 7, 2020

Who else would be on the Bush-Gore commission? Homeland security experts like Michael Chertoff, Fran Townsend and Janet Napolitano. Former election officials like Trey Grayson and Mark Ritchie, who served as Secretaries of State in Kentucky and Minnesota, respectively, and Trevor Potter, the former chair of the Federal Election Commission. Election lawyers like Ben Ginsberg and Bob Bauer, who headed an earlier bipartisan commission on election reform. Election law experts like Rick Hasen at the University of California-Irvine Law School and Ned Foley at Ohio State.

‘We’re Not Ready’: Experts Sound Alarm as US Embraces Mail-Focused Election
Thomas F. Harrison
Courthouse News Service | August 3, 2020

How Americans Came To Expect Election Results On Election Night (includes video)
Stephanie Liebergen
Newsy | July 29, 2020

What Will a Post-Trump G.O.P. Look Like?
Bret Stephens
New York Times | Opinion | July 27, 2020

As Ohio State law professor Edward Foley noted last year in a must-read law review article, a state like Pennsylvania could send competing certificates of electoral votes to Congress. Interpretive ambiguities in the 12th Amendment and the Electoral Count Act of 1887 could deadlock the House and the Senate. We could have two self-declared presidents on the eve of next year’s inauguration.

Can a Group of Policy Experts Prevent an Election Catastrophe in 2020?
David Corn
Mother Jones | June 30, 2020

Edward Foley has a nightmare. It’s a poli-sci horror tale. A professor of constitutional law and elections expert at The Ohio State University’s Moritz College of Law, Foley foresees a scenario for the coming election that could tear apart American democracy.

Old law could leave 2020 presidential race in stalemate
Todd Ruger
Roll Call | June 1, 2020

“If you’re asking the question what should Congress do to prepare for November, that would be on the top of the list,” said Edward Foley, a constitutional law professor and director of Ohio State University’s election law program, who has written on the provision and hosted a recent online expert roundtable discussion on it.

Widespread voter fraud not a problem in Ohio
Rick Rouan, Columbus Dispatch
Cincinnati.com – The Enquirer | June 1, 2020

“Incidences of fraud are very low. It’s not zero. It’s not completely non-existent but it’s very low and unlikely to affect the outcome of elections except in extraordinary circumstances,” said Ned Foley, director of election law at Ohio State University’s Moritz College of Law.

Six Scenarios for Confusion in Counting the 2020 Ballots: Not Just Scary Campfire Stories Any More
Louis Jacobson
The Cook Political Report | May 25, 2020

Earlier this month, some 30 political scientists met virtually for a public webinar and discussion of outlandish, yet hardly implausible, scenarios of how the 2020 presidential election could devolve into chaos. It was convened by law professors Edward B. Foley and Steven F. Huefner of Ohio State University.

How do you prevent a disputed 2020 election in Pennsylvania? Lessons from an expert panel.
Jonathan Lai
The Philadelphia Inquirer | May 4, 2020

“You should try to predict things going wrong so that you can figure out what to do about it,” said Edward B. “Ned” Foley, one of the Ohio State law professors who organized the event. “When you think your ship is unsinkable … that’s where you’re in trouble, because it turns out you didn’t have enough lifeboats for the Titanic.”