In the News

Recent articles authored by Election Law at Ohio State Faculty Experts

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

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

Recent articles quoting/mentioning Election Law at Ohio State Faculty Experts

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.

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

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.”