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Election Law @ Moritz

Election Law @ Moritz

Free & Fair

"By the way, we have to fix that"

Correction: the President was originally quoted as saying "we need to fix that"; the quote has been changed to be exactly accurate.

At the beginning of his reelection victory speech, President Obama referred to the extraordinarily -- and unacceptably -- long lines that many voters in this year's election faced.  Then, he added: "By the way, we have to fix that." 

Let us hope that there is bipartisan support for that sentiment. 

There will be ample time for reflection and examination on what went wrong this year regarding the voting process, and what aspects of it work properly.  But for now it is enough to say that there is an overwhelming, and widespread, impression that "surely we can do better" -- to echo Alex Keyssar's eloquent statement today on the New York Times website.  As he said, it is a serious problem that "[a]ll of us now expect elections to be not only competition between candidates and parties but also conflicts over voting rights and election procedures." 

Rick Hasen has expressed the hope that the nation won't ignore the significant structural weaknesses in our electoral system, now that the presidential election is "over" (except, of course, for all the official processes that remain, from the canvassing of returns to the meeting of the Electoral College, and the congressional reception of those Electoral Votes).  I share Rick's hope, and look forward to doing the hard work necessary -- through the American Law Institute's election law project and otherwise -- to help develop principles and proposals for what an improved electoral system would entail. 

Meanwhile, there remain races other than the presidency that are still "too close to call," and it will be important over the next days and potentially weeks to watch the processes by which they are officially determined.


Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

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