Seven Questions with Ohio State Election Law Expert Ned Foley
While election season is always busy for professor Edward B. “Ned” Foley, the director of the election law program at Ohio State’s Moritz College of Law and the author of two books and numerous law articles about U.S. elections, the past few months have been an unusually wild ride. Foley, who in 2013 coined the term “blue shift” to describe the dynamic that is at the root of President Trump’s current electoral histrionics, was named as an election law analyst for NBC News in September and a contributing opinion columnist for The Washington Post in October. He is much in demand for his deep understanding of the complex and sometimes flawed mechanics of our electoral system, and his essays have shown up in TheNew York Times, TheWall Street Journal, TheAtlantic and elsewhere.
In November 2012, Foley was watching to see whether the presidential race would be close enough for a battle to ensue. As preliminary returns reported by the networks on election night were later replaced with updated vote tallies and the percentages changed, he began wondering about a phenomenon he had not noticed before: In many jurisdictions, votes counted after election night, which included mail-in and provisional ballots, appeared more heavily weighted toward Democrats than those counted just after the polls closed. Seeking to understand that shift, he studied election returns going back to 1960 and wrote a paper arguing that what he called the “blue shift” was a recent phenomenon related to changes in voting laws and procedures that had been adopted after the contested presidential election of 2000.
In 2018, Foley was again watching as the Republican lead in two Florida races—for governor and U.S. Senate—receded and President Trump began tweeting that officials should stop the count and “go with election night.”
“And it occurred to me that you could have a situation where if the president was ahead on election night in a battleground state like Pennsylvania,” Foley recalls, “he could be upset as his own lead diminished.” He published another paper in 2019 that gamed out that possibility.
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As the COVID-19 pandemic gripped the country in 2020 and election day loomed, Foley realized that a convergence of factors could make the still-not-well-understood blue shift even more pronounced. While virus fears would keep many from voting in person, Trump was discouraging his voters from sending their ballots by mail, virtually ensuring that a large proportion of the late-breaking votes would be for Biden and other Democratic candidates and setting the stage for post-election controversy. Foley began sounding the alarm in essays and interviews, hoping to prepare Americans for what could be a blue shift of unprecedented proportions.
Of course, we now know that Foley was correct, and that President Trump would respond to his apparently-shifting fate just as Foley had predicted, with misleading tweetstorms and a raft of lawsuits. But despite concerns about the flaws in our electoral system, Foley is confident that Trump’s baseless accusations will not prevent Joe Biden, the winner of the election, from being inaugurated Jan. 20. Foley spoke with Columbus Monthly by phone last week; the interview has been edited for length and clarity.
You published an essay in The Washington Post Nov. 11 under the headline, “Relax. Biden will be sworn in Jan. 20th.” What makes you so sure of that?
Just numbers in the Senate. Ultimately, it’s Congress on Jan. 6th that determines who’s going to be inaugurated on Jan. 20. And maybe I'm extrapolating, but there were four Republican senators who have congratulated President-elect Biden. On the assumption that they would honor that on Jan. 6, that's enough votes when you combine it with the Democrats in the Senate. The House and Senate vote, and if both chambers agree, that’s your president. It’s just a question of numbers.
There's really two magic numbers. We’ve all heard of the magic number 270. That's how many votes a candidate needs to win in the Electoral College. But there's a second magic number, which is getting the majority in Congress to recognize that Electoral College victory.
Tell us about the role of the so-called “blue shift” in this election.
When I wrote the paper in 2019, I was very worried that there would be insufficient understanding of the blue shift, that it would make it more possible for a false narrative to prevail that would exacerbate public misunderstanding of this phenomenon. That there would be even more distrust of those shifting numbers and [that we would see] rhetoric of the election being stolen: “How can this happen? This must be wrong.” I did not want America to be caught by surprise that a presidential election could turn on the blue shift. If the first time most people heard of it was on Nov. 3 and 4th of this year, that would have been very hard to digest.
I wish we didn’t have a pandemic to elevate awareness of this phenomenon, but I actually do think, partly as a result of it, the media caught on to this idea early enough that by the time Nov. 3 came along, this had become absorbed into the body politic. There’s now a large segment of the professional political class, if that’s the right term, of Republicans as well as Democrats who understand that the blue shift votes are valid votes. You have Karl Rove writing an op-ed for The Wall Street Journal saying there’s no fraud, there’s no evidence of that. You have John Bolton doing the same thing. And Fox News called the election. It hasn’t wrapped up completely, and the extent to which a percentage of the American people ultimately come to accept that Biden won authentically, we’ll have to see what those numbers end up being, but I think that we would have been in a worse-shape place if this had caught the media by surprise and professional politicians by surprise.
Yet there's an idea circulating that if the states don't manage to certify their votes in time, that Republican legislatures could send their own electors to vote. Is that a legitimate concern to you?
Yes and no. It is very much a legitimate concern, but the point of my most recent Washington Post piece is that even taking that concern as a given, here's why it’s not going to turn out to be a problem this year. Even if that were to transpire at the level of the states, it can't be successful if it's not successful in Congress.
What if the president just refuses to leave? What does the law provide for that situation?
I do get that question, but that's the one that I'm least worried about. If and when Congress declares on Jan. 6 that Biden is the one to be inaugurated in Jan. 20th, every institution in American government is going to recognize that as the correct answer, including the Pentagon and the Secret Service and the FBI.
I think he's unlikely to want the visuals of him being literally handcuffed and walked out the door. So he will leave the White House. He's not going to have the nuclear codes on Jan. 20th. He's not going to be commander in chief on Jan. 20. That’s an inevitability.
For as long as I can remember, our elections have been very messy, and there have been worries about the legitimacy of the election. What do you think needs to happen to give the American public more confidence in our electoral process?
There are definitely infrastructure changes and rule changes that would improve the system. The mechanics of how Congress handles things on Jan. 6 definitely needs some improvement. On my big wish list, I would replace the Electoral College with a national popular vote in the future.
But most fundamental, I think, is the reform that has to come within ourselves as a people. We have to play fair. We have to reinvigorate the value of fair play. And what fair play means is taking turns. It means recognizing the authenticity of your opponent’s victory when they actually win.
We’ve had some trouble with that. What we’re seeing now is a particularly difficult version of this, but if you recall, as most Ohioans will, 2004 was a difficult election for the state of Ohio. There were a lot of problems—long lines, it did not go smoothly—but I think there’s zero doubt from any objective perspective that George Bush beat John Kerry fair and square in Ohio, and with Ohio got the Electoral College. And then Rolling Stone magazine claimed that it was rigged or stolen, and in the U.S. Congress in its relevant meeting Jan. 6 you had Sen. Barbara Boxer and Rep. Stephanie Tubbs Jones file objections to Bush’s victory in Ohio. They were denied, but in my judgment that was irresponsible.
You shouldn't claim the candidate lost when they didn't. You can complain that there were long lines, which you could fix for the future. You could claim provisional ballots should be handled better. Given how badly the Ohio election was run that year, I could say maybe it cost Kerry 50,000 votes. That’s kind of charitable. But Bush won by 120,000.
Obviously, Russia should not have done what it did in 2016 with the hacking of the emails and disinformation on social media. But Donald Trump won the vote in Pennsylvania, Michigan and elsewhere to entitle him to be in the Oval Office for four years. Those votes were cast by eligible voters, and they were counted accurately. And under the rule of law, he was our lawful president. And yet significant segments of the Democratic Party apparatus, you know, not only did they investigate the Russia thing but really wanted to basically claim that he wasn't a valid president. Secretary Clinton, even though she conceded defeat on election night, she sort of retracted it in a CBS interview when she said, you know, he's not our legitimate president—or words to that effect.
So both sides need to change their approach.
Absolutely. Democracy, to be robust, is competitive. A healthy democracy has at least two parties. You're always going to have a more left-of-center party and you’re always going to have a more right-of-center party competing for the median voter, and [in a healthy democracy] you're not going to have voter suppression. You’re not going to have efforts to delegitimize the system. You’re not going to have gerrymandering. Healthy democracy is going to have fair competition between two competitive robust parties competing on public policy. Higher taxes, lower taxes, better health, you know, genuine philosophies. And the parties are going to take turns, depending upon the prevailing sentiment of the voters in any given electoral cycle. That’s reciprocity, that’s fair play.
But we have gotten ourselves into this very troubling cultural position, where we’re unwilling to let the other side have a turn. And we want to delegitimate their victory even when they have one. How we repair that is I think our number one priority.
It's taken a while for us to get where we are, and it's going to take time to get back, but we shouldn't despair. There are parallels to our era in the Gilded Age. There was a period in the 1880s and 1890s of intense polarization, very ugly politics. Often violent in a way that, thankfully, our politics is not. And part of that ugliness was huge wealth disparity. It was before the period of anti-trust laws. And there was some anti-immigration sentiment in that era, too.
Yet we got out of that period with the progressive era, which was not perfect, but brought us significant reforms. I mean, women’s suffrage! The 19th Amendment. The 15th amendment, [in 1870], was important from a moral point of view, but the 19th Amendment  was probably the most significant, just in terms of raw numbers. And people often don't remember the fact that before the 17th Amendment [in 1913], “we the people” didn't vote for U.S. Senators.
It was difficult to amend the Constitution. Very, very difficult. And yet we got these two hugely important pro-democracy reforms in the Progressive Era. So I’m hopeful that we'll have a new Progressive Era here that is going to follow this sort of second version of the Gilded Age that we’re currently living in.
You've been around for other contested elections, but this has really ratcheted up your public prominence and busyness. Am I right? How has this changed your life?
Well, I mean, I probably actually don't have a moment to reflect on it, to be honest. Ask me in a few weeks!
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