All posts by Ned Foley

Unfortunate use of the word “coup”

The New Yorker writer Susan Glasser, a journalist whom I greatly admire (and read regularly), in her most recent column uses the word “coup” to describe the current effort within the Democratic Party to persuade Joe Biden to step aside and let the party choose another nominee: “The coup against Joe Biden, should it succeed, would represent something as unprecedented in its own way as the fact that the Republican Party has now formally ratified the decision to stake its future on a deeply unpopular, rapidly aging demagogue who was repudiated by voters only four years ago.” The column also uses the word “coup” in its subtitle: “As the Republican Convention anoints the ex-President, the Democratic panic over Joe Biden begins to look like a coup.

Even accounting for some metaphorical leeway as part of a writer’s creativity (so-called “poetic license”), to characterize what’s going on right now within the Democratic Party as a “coup” is deeply misleading and disserves the public. It suggests that this internal debate within the party is somehow improper, illegitimate and undemocratic (small-d). Indeed, that’s why Chris LaCivita, Trump’s senior campaign adviser, has used the same word “coup” to describe what’s happening among the Democrats.

Whether or not one thinks Democrats should substitute another candidate for Biden as their nominee, that is a matter for the Democratic Party to decide pursuant to its rules, and there is nothing improper, illegitimate or undemocratic (small-d) for members of the party to deliberate among themselves as to the best course for their party to take in light of developing conditions.

To be sure, Biden is the presumptive nominee based on the results of the party’s presidential primaries, and unless he withdraws from the race the delegates to the party’s nominating convention who are “pledged” to his candidacy–according to the party’s rules–“shall in all good conscience reflect the sentiments of [the voters] who elected them.” But if Biden ultimately decides to withdraw based on all the input he’s been receiving from members of his own party, both leaders and grassroots, then there is no “coup” at all. Instead, the party would be deciding for itself what’s best in the circumstances.

In fact, even if Biden refuses to withdraw and an effort is mounted to challenge his continued candidacy based on the proposition that his “pledged” delegates should no longer vote for him “in all good conscience” because of what’s changed since the primaries (including his disastrous debate performance), that effort would not be a “coup” attempt. Although, as a practical matter, I think such an effort would be most likely to fail, it would not be in any way improper, illegitimate, or undemocratic (small-d) under the party’s rules. Rather, it would be following those very rules to hash out a significant disagreement among the party’s members about what the party should do.

A coup, by contrast, is the seizure of power contrary to established rules–the opposite of what Democrats in good faith disagreement would be doing as part of the party’s internal self-governance. The term “coup” therefore is much more appropriate to apply to what Trump attempted in his effort to seize a second term despite losing the 2020 election. In my own writing about the 2020 election, I have often been hesitant to use the term “coup” to describe what Trump did (although I have done so occasionally) based on a belief that using the term tends to cause an emotional response that can cloud analytic reasoning over what actually happened. Nonetheless, insofar as Trump fought to repudiate the outcome of the 2020 election in order to cling to power using improper, illegitimate, and undemocratic (small-d) means–like attempting to pressure Pence into rejecting the valid electoral votes from the states–it is not wrong to use the term “coup” to describe what Trump attempted.

It is wrong, however, to use the same term to describe the current contestation within the Democratic Party. It is a false equivalence to write, as Susan Glasser did, that the attempted “coup against Joe Biden” would be anything like what Trump did in response to being “repudiated by voters” in 2020. Even if it’s a false equivalence that the Trump campaign already has seized upon, journalists should not make the same mistake.

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“Don’t Overread the Court’s Immunity Opinion”

ELB readers might be interested in this Lawfare analysis. Its subheading: “Chief Justice Roberts gives neither Trump nor any future president a green light to tyranny, as some initial reactions to his opinion fear.”

Its opening paragraph:

The Supreme Court’s decision on presidential immunity, Trump v. United States, is not nearly as dire as many commentators have exclaimed. I wouldn’t have written the opinion that Chief Justice John Roberts did. But it does not make the president a king, and it does not give the president a license to act lawlessly.

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Elaine Karmack explains…

… the Democratic Party’s rules for what would happen if and when President Biden steps aside, on the latest episode of POLITICO Playbook’s Deep Dive podcast. (I assume ELB readers know of her expertise on this topic.) The discussion is useful especially for explaining that, if Democrats go forward with the planned virtual roll call before the convention, the convention delegates still would have the power to change the party’s nominee at the convention itself. (From what I have observed of media coverage of this topic, there’s been some confusion on this point.)

The discussion also helpfully reminded listeners of what happened in 1972, when the Democratic Party’s vice presidential nominee dropped out after the party’s convention, and the Democratic National Committee chose a new nominee, Sargent Shriver. As a matter of party governance, this post-convention power still exists. What’s different between 1972 and now is the timing of the party’s convention this year (very late in August) and state law deadlines for printing ballots with the nominee’s name (earlier, because of changing rules and practices concerning absentee voting). Still, if a party’s nominee changes after the ballots are printed, and the party’s ticket still wins the popular vote in a state, the party’s electors remains the same, and presumably the party’s electors vote for the party’s new nominee regardless of who is named as the party’s nominee on the ballot. I haven’t research how Chiafalo would apply in this situation, but if a state law mandated that a party’s electors voted for someone who was no longer the party’s nominee, just because that person was named as the party’s nominee on the ballot (before the party made its change), I would think that would raise a serious constitutional question.

Chiafalo itself, in footnote 8 of the Court’s opinion, flagged the possibility that the text of a state’s law might seemingly force the state’s electors to vote for person who died after winning a party’s nomination. The Court expressed hope that states would avoid any such situation. One would think that the same situation would apply if a person was no longer the party’s nominee for some other reason than death. For example, suppose in a revised version of the Eagleton-Shriver situation, Eagleton dropped out of the race after a state’s ballots were printed, but the DNC had replaced Eagleton with Shriver as the party’s vice presidential nominee–and had done so before the popular vote in November to appoint the state’s electors. Suppose, further, that the McGovern-Shriver ticket won the popular vote in a state even though the ballots in the state had McGovern-Eagleton listed as the party’s ticket. (I know that McGovern only won one state, plus DC, in 1972, but stick with the hypo for purposes of considering the relevant legal issue.) Imagine that the state’s law, as written, appeared to require the state’s electors to vote for Eagleton, rather than Shriver, for vice president, even though Eagleton had dropped out as the party’s vice presidential nominee and the party had replaced him with Shriver before the popular vote in November. Given the Court’s footnote 8 in Chiafalo, the canon of constitutional avoidance would lead to considering whether the state statute could be construed as requiring the state’s electors to cast their votes for the party’s new nominee, rather than the person named on the ballot who was no longer the party’s nominee. If the statute could not be construed to yield this result, it might well be deemed unconstitutional by the Court as preventing the state’s electors from voting for the party’s nominee.

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Lincoln’s contemplated coup d’etat: immune or not?

This post is a revised version of a nonpublic email I sent yesterday. Several who received the email responded by saying that Lincoln example discussed in the email is useful. Therefore, I’m sharing it here.

Yesterday the Washington Post ran a story under the somewhat misleading headline: Supreme Court’s Trump immunity ruling poses risk for democracy, experts say. The headline is misleading insofar as one of the leading “experts” quoted in the piece, Derek Muller, expressed the opposite view.

For what it’s worth, I largely agree with Derek’s analysis as quoted in the article. I also differ with David Becker, quoted in the same article, when he says : “If a future president sitting in the Oval Office were to want to commit crimes, up to and including subverting an election or remaining in power against the will of the American people, this opinion, in my mind, could provide a road map for that.”

I don’t think the Court’s opinion necessarily greenlights a first-term president’s efforts to gain a second term by unlawful means. I won’t consider here all the possible scenarios one could contemplate, but it suffices to say that the Court’s analysis, based on Justice Robert Jackson’s concurrence in the Steel Seizure Case, would require careful consideration of the facts before concluding either that a president was absolutely immune for any particular action or presumptively immune and if the later whether that presumption could be overcome in the specific circumstances.

If one wants to ponder a difficult case on whether or not a president should be immune from criminal prosecution for attempting to subvert an election—and essentially engaging in a coup d’etat—I suggest considering the plan that President Lincoln had in place if the Speaker of the House election after the 1862 midterms had not gone his way. As I was very surprised to learn during my research for Ballot Battles, and as I recounted in that book (page 112 of the second edition), Lincoln was prepared to send the military onto the floor of the House to make sure his party’s candidate for Speaker was elected rather than the Democrats’ candidate. It was crucial to Lincoln that Republicans keep control of the House after the 1862 midterms; otherwise, funding for the Union’s prosecution of the Civil War against the Confederacy (which was not going well at that point) would have dried up, and “Peace Democrats” would have been able to force a settlement with the South without a Union victory. Fortunately, the Speakership election went in Lincoln’s favor, and he was never required to rely on his plan to use his Commander-in-Chief power to order the military to make his will prevail in the House chamber. 

But what if he had? And what if Lincoln had lost the 1864 election to McClellan and, not assassinated by Booth, had been criminally prosecuted by McClellan’s DOJ for improperly using the military to interfere with the House’s election of its own Speaker? In that scenario, should Lincoln have any immunity, absolute or presumptive? Lincoln would have characterized his use of troops in that context as an official act necessitated by the Civil War. I’d be inclined to say that Lincoln would not have absolute immunity in that context because, per Justice Jackson in Youngstown, Lincoln’s military powers are shared with Congress. But I think it’s fair to consider that Lincoln should be presumptively immune from criminal liability for making his best judgment as president as to how to exercise his commander-in-chief powers in the context of the Civil War. As horrified as I was to learn about Lincoln’s willingness to consider using the military to interfere with the House’s own election of its Speaker—an act if Lincoln had undertaken it would have been a form of coup d’etat in my view—I’m reluctant to think that Lincoln should have been subject to criminal prosecution for that exercise of presidential (mis)judgment. 

All of which brings me back to the main point: we need to figure out a way to make impeachment—and, most essentially, conviction by the Senate—a meaningful constraint on the abuse of presidential power. I’m not at all troubled by the idea that Lincoln might have been impeached and convicted for committing, or attempting, a coup d’etat, against the House’s choice of its own Speaker. Impeachment, removal from office, and disqualification from future office are appropriate responses to egregious misuses of presidential power, whereas incarceration upon criminal conviction is much, much more troublesome in my view. 

The remedy for David Becker’s feared scenario of a future president seeking reelection by subverting the valid election of his opponent (and being successful in this subversion, whereas Trump failed in 2020) is to figure out a way to make the impeachment process meaningful. As I wrote in my essay Presidential Immunity and Partisan Primaries, the way forward in this regard is eliminating partisan primaries and the perverse incentives they create for incumbent Senators.

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Is presidential poisoning of an AG absolutely immune?

I wrote the following originally as a nonpublic email but subsequently have been asked to make it publicly available. I do so in the spirit that deliberation among scholars about a new Supreme Court opinion as important as the presidential immunity case will lead to better collective enlightenment on the topic, and thus these preliminary views are necessarily tentative and subject to revision upon further reflection, dialogue, and deliberation.

On Rick’s concern about a president poisoning the Attorney General (or the Seal Team Six hypo, which I obliquely address in my post on Presidential Immunity and Partisan Primaries), I think it’s defensible that the Court did not address specific hypothetical cases not before the Court in this case; after all, anything the Court said about those other circumstances would be dicta.

More broadly, I think that we should not hold the Court responsible for the failure of Congress to disqualify Trump from a return to the presidency. The Court has been criticized, both after the oral argument and now after its decision, for deciding this case based on principles that necessarily apply more broadly than just Trump’s own conduct. But I think that criticism is unwarranted. Whatever one thinks appropriate presidential immunity law should be, the Court shouldn’t distort or shape that law just because Trump’s potential reelection is a threat to democracy (as I, among so many others, believe it is). 

It has been a huge mistake, in my view, to try to rely upon criminal prosecution of Trump as the way to derail his reelection. First, the Senate should have convicted Trump, ending the threat of his return to power. After that failed, Congress should have passed a statute to enforce section 3 of the Fourteenth Amendment. (Even though in the Colorado case, I took the position—and still believe—that a congressional statute of this nature wasn’t constitutionally necessary for the Court to reach the merits of the section 3 issue there, it still would have been much better if Congress had explicitly mandated judicial resolution of the section 3 issue.)  Those two avenues would have been the appropriate way to prevent the potential threat to the Republic from Trump’s reelection. 

Whether the criminal prosecution of Trump for his attempt to subvert the 2020 election should move fast or slow should be determined, in my view, entirely by considerations relevant to fair criminal procedure and not at all with respect to electoral politics. With respect to the substantive merits of the prosecution of Trump in the January 6 case, what posture is it in after yesterday’s immunity decision? Based on my reading of the majority opinion, not in the dire posture that I’ve seen some commentators suggest. Much of what’s alleged in the indictment potentially still can go forward, including Trump’s attempt to pressure Pence. (I agree with Barrett that the Court could have declared itself that Trump’s effort to organize alternative electors was unofficial conduct not entitled to any immunity, but that determination is still open on remand, and so again the only “problem” there is a timing one.) 

Without opining on specific hypothetical fact patterns, the Court needed to articulate an immunity doctrine applicable to President Biden as well as President Trump (and all future presidents). It’s not the doctrine that I would have crafted, but it’s not a crazy doctrine. What will matter going forward is how the Court handles the presumption of immunity it’s created for all official acts and how hard or easy it will be to overcome that presumption. It will also matter how the Court distinguishes between official and unofficial conduct. At some point, I may have more to say about Trump’s and the Court’s invocation of the role of President Grant in the 1876 election, as that’s a matter I know something about from my research for Ballot Battles. And, to Rick’s point, it will be necessary for the Court to clarify how to apply its doctrine of absolute immunity for “core” presidential powers—the kind that Justice Robert Jackson’s concurrence in Youngstown put off-limits for any congressional oversight. But I don’t think immunity from the exercise of even a core power absolutely immunizes conduct related to the exercise of the core power that is not itself within the zone of the core, as the example of accepting a bribe in exchange for a presidential pardon shows. I think it’s fairly straightforward to analyze poisoning the AG in the same way: officially dismissing the AG is core, and there can be no punishment for the dismissal itself pursuant to a corrupt motive; poisoning the AG in order to remove him is not core and should easily overcome any presumption of immunity in connection with an official act, even assuming the presumption would be applicable to a presidential directive to a White House staffer to “rid” the president of this “meddlesome” AG by means of poisoning. 

But exactly how the doctrine should apply to future hypothetical cases should be left to those cases if they ever should arise actually (which of course we all hope that they won’t).

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Presidential Immunity and Partisan Primaries

New Common Ground Democracy essay on yesterday’s SCOTUS decision, with this subtitle: “The effort to prosecute Trump criminally is a consequence of the Senate’s failure to convict him in the impeachment case, and why did the Senate fail in this? The fear of being primaried.”

It begins: “You might think that the Supreme Court’s presidential immunity decision has little or nothing to do with the need to eliminate partisan primaries in congressional elections, but in fact they are very much related.”

The essay relies heavily on the important point about incentives that Kevin Kosar made in last week’s webinar. This incentives point is yet another key reason why in this “hair on fire” moment there is even greater need to eliminate partisan primaries.

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The Primary Importance of Primary Reform

Nate Persily is one of our nation’s leading election law scholars (and a friend), with whom I usually agree on many specific matters in our field, but he is quoted today in the N.Y. Times (in an article today by Michael Wines) making a point with which I strongly disagree. The issue being discussed is whether a move from partisan to nonpartisan primaries, of the type used by California in its top-2 system or Alaska in its top-4 system, would significantly help curb the disproportionate strength of MAGA extremists within the Republican Party, leading to the election of more moderate Republicans whose views align more closely with the median voter in the relevant electorate.

Here’s the relevant passage of the article:

However laudable, many experts and activists say that the proposed fixes are weak medicine to cure what ails American democracy.

“Everyone agrees that our political system is dysfunctional,” said Nate Persily, a leading expert on voting and democracy at Stanford Law School. “But this is not a particularly effective way to deal with our hair-on-fire moment. When insurrectionists are breaking down the Capitol doors, there’s only so much that changing primary election rules is going to do.”

I believe that Nate’s characterization of the potential significance of primary election reform is much more pessimistic than is warranted. Instead, I associate myself with Rick Pildes who in his important Dunwody lecture identified the adoption of nonpartisan primaries as the number one reform priority in order to reduce the distorted power of partisan extremists within government. The same priority is expressed in Nick Troiano’s book, The Primary Solution.

There is substantial evidence that partisan primaries (combined with “sore loser” laws, which prohibit candidates who lose partisan primaries from running as independents in the general election) cause voters in November to make a choice between an extreme MAGA Republican and a Democrat, when the median voter in November would prefer a non-extreme Republican over either of these two alternatives. When forced to choose between the extreme MAGA Republican and the Democrats, voters in red-leaning states and districts elect the extreme MAGA Republican rather than the Democrat. This causes voters to send to Congress more “insurrectionists” when the median voters in these congressional districts (and states) would prefer to elect a non-insurrectionist Republican. Replacing partisan primaries with nonpartisan primaries would be a significant step, contrary to Nate’s quote, in removing this distorting dynamic that causes Congress to be populated with many more insurrectionists than the voters actually want.

I have written extensively on this point, in both law review articles and public commentary, and I won’t repeat (or even cite) those writings here. I will offer two simple illustrations of the basic truth. Arizona’s second congressional district is represented by Eli Crane, a MAGA election denialist who was one of the eight extremists who brought Kevin McCarthy down. The only reason why Crane won his seat is because he defeated a more moderate Republican in the partisan GOP primary, and then went on to win the general election in his red-leaning district. There’s no doubt that Crane’s GOP primary opponent would have been preferred over him by his district’s median voter. (In other words, Crane’s primary opponent would have won the general election by an even greater margin than Crane did.) Indeed, at a recent symposium on primary elections research sponsored by Unite America and the National Institute for Civic Discourse, I saw a presentation of empirical analysis conducted by Georgetown University scholars that confirmed this truth.

A second example is J.D. Vance’s victory over Matt Dolan in the 2022 GOP primary for Ohio’s U.S. Senate seat, after Rob Portman declined to run for reelection. Vance is the ultimate insurrection-supporting politician, saying that if he had been Vice President on January 6 he would not have acted as Pence did, whose election to the Senate is a consequence of the distorting effect of partisan primaries. Ohio’s general election voters in November would have much preferred a non-MAGA alternative to J.D. Vance, like Dolan or Portman, but the institutional effect of partisan primaries prevented them from having that option, causing Congress to be more populated by insurrectionists that it otherwise would be based on the true preferences of the median voter of each state and district.

Thus, my view on this key point is exactly the opposite of Nate’s: I agree with him that it is a “hair-on-fire moment” because of the threat of “insurrectionists” and the “dysfunctional” nature of existing institutions under current conditions, but it is precisely because we are in a “hair-on-fire moment” that I think institutional reform to eliminate partisan primaries is such a high priority. To be clear, since January 6, I have repeatedly stated that I thought the two highest electoral reform priorities were (1) revising the Electoral Count Act of 1887, and (2) a requirement that members of Congress be elected by a majority, rather than a plurality, of votes–a reform that would functionally necessitate the kind of nonpartisan primary that both California and Alaska use. Thankfully, we accomplished the first reform before this year’s presidential election. Regrettably, we did not accomplish the second.

A further point of clarity: those familiar with my work in this area know that while I believe nonpartisan primaries are necessary part of the institutional reform to combat extremism, I also believe that in many circumstances nonpartisan primaries alone will not be sufficient and must be coupled with Convergence Voting (in technical terms, Condorcet-based electoral procedures). Depending on the degree of polarization within an electorate, candidates closest to the electorate’s median voter–like Dolan or Portman in Ohio–cannot win even if there is a nonpartisan primary, unless there is also a voting procedure geared to electing the candidate closest to the median voter, as Convergence Voting is. (For those interested in learning more about Convergence Voting and how it differs from the “instant runoff” form of Ranked Choice Voting, tomorrow’s webinar on this subject is very timely.) But to say that Convergence Voting must be part of the prescription to combat the ill of unrepresentative insurrectionism (along with nonpartisan primaries) is no reason to deny–as Nate apparently does–that the use of nonpartisan primaries is effective medicine. Instead, it just needs to be administered as part of an overall treatment plan.

This is why the Arizona reform effort, which the New York Times article describes, is so important (as I’ve written previously). If adopted, it will complete the first essential step of eliminating partisan primaries in that hyper-polarized state–where extremist Crane was able to win his congressional seat, despite his district’s voters preferring the more moderate Republican he beat in the primary–and leave open the next step of adopting Convergence Voting as the way to assure that insurrectionists disfavored by a majority of voters do not prevail.

Finally, it is worth noting (as the Times article does) that the extreme MAGA wing of the Republican Party is doing its best to hold on to partisan primaries. This is because the extremists instinctively know that they need the distorting effect of partisan primaries in order to be able win office. They don’t want any reform that will let voters have their true preference of non-extreme Republicans. Their behavior is additional reason to believe Nate incorrect on this crucial issue.

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Reminder: Wednesday webinar on electoral reform

I won’t repeat all of the previous ELB post announcing this webinar on alternative electoral reforms to improve American democracy, especially in light of increasing partisan polarization. I will simply note that the French legislative elections, the first round of which is this coming Sunday, is a stark reminder of the stakes involved in the choice of an electoral system. The U.S. is hardly alone in facing the dangers of hyper-polarization. France, like the U.S., has tried since the late eighteenth century to make democracy work. Both countries have had their share of difficulties in this regard: France with its Reign of Terror when its revolution spun out of control, the U.S. with its Civil War and failed Reconstruction. The question for both countries now is whether they can draw upon their common heritage of political science about the design of republican government, a heritage stemming from the Enlightenment, to develop and implement to procedures for self-government in order to avoid its demise.

The webinar is on Wednesday at 3pm ET. Here, again, is the registration link.

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“France’s ‘snap’ legislative elections are a warning”

New Common Ground Democracy essay with this subtitle: “The likelihood that extremist parties on the right and left will gain at the expense of the middle illustrates with hyper-polarization necessitates electoral reform.

The essay begins: “France is facing a political crisis that it could have avoided if it had adopted an electoral system of the type advocated by its most prominent theorist of electoral system design, the eighteenth-century mathematician and philosopher Marquis de Condorcet.”

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Structural Reform of U.S. Elections: The Choice Between Instant Runoff (Hare) and Convergence (Condorcet) Voting [updated]

The Election Law team at Ohio State University is hosting a thought-provoking webinar on Wednesday, June 26, from 3-4 pm to discuss the possibilities of Structural Reform of U.S. Elections, with a focus on the nuanced differences two different electoral methods: one is commonly called Instant Runoff Voting and known to election specialists as the “Hare method” because of its British inventor, Thomas Hare; the other is best described as “Convergence Voting” because of its mathematical property of identifying the candidate upon whom different majorities of voters converge to elect the candidate who achieves the broadest support within the electorate. Election specialists generally credit the Marquis de Condorcet, an eighteenth-century French philosopher, as proposing the mathematical principle of Convergence Voting (although 500 years earlier a thirteenth-century Majorcan philosopher named Ramon Lull developed the same mathematical principle, but his innovation was lost to history until recently).

Our panel of election reform experts and researchers will explore the pros and cons of these two alternative electoral systems as potential remedies for the problems that currently plague American elections, including the failure of existing electoral structures to produce outcomes that match the overall preferences of voters and, relatedly, the tendency of the existing system to exacerbate the pathology of hyperpolarized politics.
Much more than just a question of technical mathematics, the choice of what electoral system to adopt is ultimately a philosophical decision about what kind of democracy we want. Our conversation will illuminate what’s at stake in making this choice, so that citizens can better understand how to achieve the form of self-government they consider best.

A link for registering for this webinar is available here.


Panelists:

Deb Otis, is the Director of Research and Policy at FairVote. With a decade of experience in research and analytics, Deb is passionate about sharing the data-driven case for why our country needs election reform. In addition to ranked choice voting and proportional representation, Deb’s areas of research include comparative electoral systems, political polarization, redistricting, representation for women and people of color, the electoral college, and election recounts. Deb is a graduate of Boston University with degrees in Economics and Physics and she lives in Washington, DC.

Kevin R. Kosar, is a senior fellow at the American Enterprise Institute (AEI), where he studies the US Congress, the administrative state, American politics, election reform, and the US Postal Service. He edits UnderstandingCongress.org and hosts the Understanding Congress podcast.
 
Edward B. Foley, holds the Ebersold Chair in Constitutional Law at The Ohio State University, where he also directs its election law program. His writing and teaching focuses, in part, on voting system design, gerrymandering, the Electoral College, and electoral reform. Foley is a 2023 Guggenheim Fellow and, from January to March 2024, a Visiting Professor at the University of Arizona Rogers College of Law. For the 2024-2025 academic year, he will be a Crane Fellow in Law and Public Policy at Princeton University. 


Moderator:

Professor Steven Huefner, C. William O’Neill Professor in Law and Judicial Administration, Moritz College of Law, and Deputy Director, Election Law at Ohio State.

This post has been updated to include the webinar registration link.

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New updated edition of BALLOT BATTLES now available

Oxford University Press has published a revised and expanded edition of Ballot Battles: The History of Disputed Elections in the United States. It’s also available in a Kindle version for those, like me, who prefer to read (and highlight) electronic copies.

The first edition of Ballot Battles was released in December of 2015, before Trump emerged as the transformative force in American politics that he has since become. (Although my son told me in the summer of 2015 that Trump would win the 2016 election, I did not believe him. When Trump said that John McCain was “not a war hero” and that he only “like[d] people who were not captured,” as he did in July of 2015, I assumed he had no chance of winning the presidency and could be crossed off the long list of Republican contenders at the time. How wrong was I, as were many others!) I’ve been extremely gratified by the first edition’s reception, including the honor of being a finalist for the Langum Prize for books in American legal history.

This second edition of Ballot Battles brings the nation’s experience with disputed elections up to date, with a new chapter focusing on Trump’s refusal to accept his defeat in 2020. In addition, the book’s Introduction and Conclusion have been thoroughly revised in light of the significance that Trump’s evidence-free denial of Biden’s victory has in relation to all previous disputes over the outcome of elections in the nation’s history. Likewise, other chapters have been revised insofar as discussion and analysis of them benefit from comparisons to Trump’s behavior in 2020.

Although I certainly hope that the results of this year’s elections are undisputed in any significant way, to the extent that any of them are–especially the presidential election–or to the extent that anyone wishes to prepare for that possibility in advance, I hope that the availability of this new edition now provides a useful service.

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The Need for Clarity on Electoral Invalidity

Jason Willick has a new Washington Post column addressing an issue that I’ve pursued in prior scholarship and other writings–and also raised recently on ELB in connection with a New York Times story.

The issue is what kind of improprieties do, and do not, qualify for undermining the validity of an election. In my work on this work, I’ve endeavored to draw a sharp distinction between improprieties that negate voter choice (and therefore do undermine the validity of the election, because they prevent the exercise of collective self-government by the eligible voters wanting to participate in making an electoral choice) and improprieties that influence voter choice (which, while reprehensible, do not undermine the validity of the election, because they don’t prevent voters from participating and making their own judgments about how to cast their ballots).

Willick’s column pursues this issue in the context of the prosecution’s summation in the Trump “hush money” trial. He writes that the prosecution wrongly argued that Trump delegitimated his 2016 victory by concealing from voters information that they should have received. Whether or not the prosecution went so far as to say that the result of the 2016 election was invalid because of Trump’s alleged misconduct, I agree with Willick that–according to the sharp dichotomy that I draw–Trump’s “suppression” of “damaging allegations of extramarital liaisons” falls into the second category concerning misbehavior that influences voter choice and thus does not undermine the validity of the election.

I wish, however, that Willick’s analysis of this issue was as categorical in its approach as my proposed bright-line distinction endeavors to be. Instead, Willick speaks of a “continuum” of election denialism and asserts that the New York prosecutors engaged in a “soft form of election denial.” I worry that this way of talking about the topic potentially muddies a distinction that should be as crystal-clear as possible.

Like Willick, I believe that politicians can be punished for campaign finance violations, but those misdeeds do not negate voter choice and thus do not undermine an election’s validity. Similarly, disinformation campaigns–like the infamous Swiftboating of John Kerry–may be actionable under civil or even criminal defamation laws under New York Times v. Sullivan, 376 U.S. 254 (1964), and Garrison v Louisiana, 379 U.S. 64 (1964). But as deplorable as deliberate smears about a candidate may be, they too do not negate voter choice and thus do not undermine an election’s validity.

I hope that during this campaign the media can maintain this distinction, so that the public understands what’s an appropriate basis for claiming an election result is invalid–and what is not.

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