SEASON 3

Election 2020: When Are Results Official and What Happens if Results Are Disputed

The 2020 election is seeing unprecedented volatility leading up to November 3. Will this volatility make a difference, helping or hurting the system’s capacity to serve its purpose? This is the first of many questions about the 2020 election that this group of election law experts will tackle. 

Every election year presents its own distinct set of challenges, but 2020 has been a uniquely challenging year.  What can voters expect on and after Election Night? Election results are never final until much later – this year on December 14.  On that date, electors will be appointed in all states on the basis of the popular vote in each state, but will we declare success? If not, why not; in other words, what would cause the failure to achieve closure by December 14 in one or more pivotal states? Will the pre-election volatility play a significant role in post-Election Day events?

SUPPLEMENTARY RESOURCES

A transcript of the full episode is available here. Please excuse typos due to inaudible passages or transcription errors.

 

Free and Fair with Franita and Foley 

Will the U.S. have a free and fair election in 2020? In the days leading up to Nov. 3 this podcast breaks down complex legal issues for listeners who care about democracy and elections. Election scholars Edward Foley and Franita Tolson focus on the integrity and health of our democratic process. This podcast is a collaboration between OSU Moritz College of Law and USC Gould School of Law.

Purcell v. Gonzalez

“What’s at Stake in This Election? The American Democratic Experiment”

Dan Coats, The New York Times  (Sept. 17, 2020).

WHYY Radio Times: Voting rights and wrongs

In the run-up to the Presidential election, the misinformation and legal challenges to voting are coming fast and furious, with President Trump alleging that there are problems with mail-in voting leading to fraud. There is no evidence that is true. Can our election system withstand these political assaults, as well as the pandemic confusion? This hour, we’ll examine our right to vote and discuss ways to ensure a fair election. We’ll also talk about how to cast your ballot this election and look at who does and doesn’t vote and why. Our guests are Franita Tolson, a law professor at USC, and Kim Wehle, author of What You Need to Know about Voting and Why.

Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College by Edward B. Foley

Oxford University Press (2020)

“How to Know if the Election is Actually ‘Rigged’”

Edward B. Foley, Politico (Sept. 13, 2020).

“If we don’t dispel the falsehood of an election ‘delay’ now, we risk chaos in November”

Joanne Lipman and Edward B. Foley, The Washington Post (Aug. 19, 2020).

“The Simplest Way to Avoid a Wisconsin-Style Fiasco on Election Day”

Edward B. Foley and Steven F. Huefner, Politico (Apr. 21, 2020)

“The Terrifying Inadequacy of American Election Law”

Edward B. Foley and Larry Diamond, The Atlantic (Sept. 8, 2020)

Chameleon Congressional Districts

Muller, Derek T., Chameleon Congressional Districts (May 20, 2020). St. Louis University Law Journal, Vol. 64, No. 4, 2020. Available at SSRN.

The Electoral College and the Federal Popular Vote

Muller, Derek T., The Electoral College and the Federal Popular Vote (January 30, 2020). Harvard Law & Policy Review, Forthcoming, Pepperdine University Legal Studies Research Paper No. 2020/7. Available at SSRN.

Weaponizing the Ballot

Muller, Derek T., Weaponizing the Ballot (September 9, 2019). Florida State University Law Review, Forthcoming, Pepperdine University Legal Studies Research Paper. Available at SSRN.

The Spectrum of Congressional Authority Over Elections

Tolson, Franita, The Spectrum of Congressional Authority Over Elections (February 26, 2019). 99 Boston University Law Review 317 (2019). Available at SSRN.

Election Law ‘Federalism’ and the Limits of the Antidiscrimination Framework

Tolson, Franita, Election Law 'Federalism' and the Limits of the Antidiscrimination Framework (March 29, 2018). William & Mary Law Review, Vol. 59, 2018. Available at SSRN.

Assessing the Validity of an Election’s Result: History, Theory, and Present Threats

Foley, Edward B., Assessing the Validity of an Election’s Result: History, Theory, and Present Threats (February 9, 2020). Available at SSRN.

Winnowing and Endorsing: Separating the Two Distinct Functions of Party Primaries

Foley, Edward B., Winnowing and Endorsing: Separating the Two Distinct Functions of Party Primaries (February 1, 2020). Available at SSRN.

Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management

Foley, Edward B., Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management (August 31, 2019). 51 Loyola University Chicago Law Journal 309 (2019); Ohio State Public Law Working Paper No. 501. Available at SSRN.

PRINCIPLES OF ELECTION ADMINISTRATION: NON-PRECINCT VOTING AND RESOLUTION OF BALLOT-COUNTING DISPUTES (2019)

Reporter: Edward B. Foley; Associate Reporter: Steven F. Huefner

The Principles apply to any type of elective office and are structured to be useful to multiple audiences, including state legislatures, state courts, and state officers such as secretaries of state and local election officials. Part I of the Principles outlines the ways in which states can securely and efficiently incorporate early voting and absentee voting in an effort to provide the most accessibility and convenience to the American voting public. Parts II and III address how states can manage post-election disputes, with Part II focusing on elections generally and Part III concentrating on the procedures necessary in disputed presidential elections in light of unique scheduling constraints. To request a free electronic version, please email communications@ali.org.