Faculty Scholarship Digest
Edward B. Foley
Edward B. Foley (with Christopher S. Elmendorf), Gatekeeping vs. Balancing in the Constitutional Law of Elections: Methodological Uncertainty on the High Court, 17 WM. & MARY BILL OF RIGHTS J. 507 (2008).
This article undertakes a serious examination of the Supreme Court’s methodology in deciding on the constitutionality of election regulations and finds the Court’s recent jurisprudence wanting, at least as a matter of consistency. The article divides the Court’s approach on these questions into three different eras. In the first era, the approach was to consider such issues nonjusticiable political questions, unless the text of the Constitution made such avoidance impossible. In the second era, the Court reversed field, taking the view that laws burdening unenumerated political rights were presumptively unconstitutional and subject to strict scrutiny. The third era, starting in the early 1970s, took a middle course — retaining the idea of fundamental rights to vote and to ballot access but also appreciating “the sheer pervasiveness of election regulation, much of which seemed prima facie justifiable.” Under this approach, the Court wrote, there is no “litmus-paper test for separating those restrictions that are valid from those that are [unconstitutional].” The focus of this article is the Court’s methodology for deciding cases in this third, ongoing, era.
The article describes three different basic approaches: (i) “unmediated balancing” in which the Court simply decides whether the application of the regulation is reasonable given the interests served and the burdens imposed; (ii) “rule-content gatekeeping,” in which the regulation is subjected to strict scrutiny on the one hand or something akin to rational basis review on the other, depending on some feature of the regulation itself, apart from consideration of its consequences; and (iii) “consequential gatekeeping” in which the level of scrutiny is determined by the “record evidence of the requirements’ impact.”
Foley and his coauthor canvass the cases to demonstrate that the Court over the past twenty years generally followed one of the “gatekeeping” approaches, usually the rule-content approach, though without expressly describing, or even grappling with, its methodology. In the 2007 term, however, the Court decided four election law cases using very different methodologies each time, so that a lower court could now justify following each of the three approaches on the basis of a decision from the 2007 term.
The article then turns to the question of what accounts for this “methodological pluralism.” The authors “tentative view” is that “most Justices (even Scalia) approach constitutional election law thinking less about doctrinal coherence or interpretive principle than about the implications of their rulings for the system of government as a whole.”
In the end, though, Foley and his co-author argue that “[t]he ship needs a new compass, and we need to better understand why — despite its own episodic recognition of this need — the Court has been unable to procure one for itself.”
Edward B. Foley, Virtue over Party: Samuel Randall’s Electoral Heroism and Its Continuing Importance, 3 UC Irvine L. Rev. 475 (2013).
This essay grew from a keynote address Ned gave at a U.C. Irvine Symposium on election law in 2012. Ned has long been a leading proponent of non-partisan tribunals for resolving electoral disputes and a creative researcher and advocate towards developing such institutions. In this essay, however, Ned notes that even non-partisan institutions will require virtuous (in the sense of respecting law over partisan interests) office holders in order to succeed. Ned acknowledges the difficulty in not being cynical about the possibility of such partisanship, but the essay offers a powerful counter-example in a story that has been shuffled out of the usual narrative about the presidential election in which it played a crucial role: The Hayes-Tilden crisis of 1877. With three days until inauguration day, and a visible path towards an electoral count favoring Republican Hayes and a conflicting House vote denying the electoral count and selecting Democrat Tilden and talk of a military solution, Samuel Randall, highly partisan (and decidedly unheroic as a general matter) Speaker of the House, defied the hardline wing of his party in the face of verbal pandemonium and physical threats, to make a procedural ruling in accordance, in his words, with his “conscience and the law” that essentially cut off the path for Tilden in the House and assured Hayes’ inauguration.
Ned recounts the story in dramatic fashion, with careful attention to potential claims of cynics regarding Randall’s motives and concludes that Randall’s action “was instrumental in thwarting . . . [a] constitutional crisis” and “deserves to be called heroic.” Ned argues that this story should figure prominently in discussions of electoral crises---from high school history texts to speeches by academics speaking to Secretaries of State or the National Conference of State Legislatures. While Ned disclaims naïveté about an automatic transference from talking about electoral virtue to observing it, he argues that teaching such history can lead to emulation through a number of pathways and issues a call for civic virtue as a pedagogic goal for the academy.
Edward B. Foley, The McCain v. Obama Simulation: A Fair Tribunal for Disputed Presidential Elections, 13 N.Y.U. J. Legis. & Pub. Pol. 471 (2010).
This article describes the extraordinary history of the McCain v. Obama simulation. Based on his study of election disputes and their resolution, including the highly partisan, legitimacy-challenging Bush v. Gore, Ned conceived the idea of an “amicus court” — a specially selected, politically balanced tribunal that would decide actual or likely election resolution issues in moot court fashion as an assist towards either avoidance or proper resolution of such issues in actual practice. Ned persistently gathered support for his idea which eventually led to the involvement of the American Enterprise Institute and the Brookings Institution, in partnership with Election Law @ Moritz, and an extraordinary lineup of distinguished judges and Supreme Court advocates to hear the case, McCain v. Obama, at Georgetown law school, two weeks before the 2008 presidential election. The case centered on a hypothetical (drafted from the exam Ned gave in his election law class) in which election officials, in response to a snowstorm, left the polls open later in Denver than polls were kept open elsewhere in Colorado, with the result that McCain challenged the outcome on Equal Protection grounds citing Bush v. Gore.
In addition to describing the facts, legal issues and outcomes (“Obama” won a unanimous decision, with Bush v. Gore distinguished), the article provides an important roadmap for similar efforts in the future and offers some broader conclusions from the exercise about ways for better resolving election disputes. The project has received widespread attention, from NPR coverage to inspiring the American Law Institute and the National Center for State Courts to future projects. The article urges future simulations along similar lines and suggests that such efforts could provide a path to the creation of an impartial tribunal for resolving presidential election disputes that Congress could legislate, contending that “an evenly balanced three-judge panel, in which one Democratic and one Republican judge mutually agree upon a third neutral member, is the means most likely to achieve . . . success.”
Edward B. Foley, The Lake Wobegone Recount: Minnesota’s Disputed 2008 U.S. Senate Election, 48 10 Election L.J. 129 (2011).
This is the first part of a two-part article in the nation’s leading journal in the election law field. This part closely examines the Minnesota Senate election of 2008 to learn lessons for disputed elections, both avoiding and resolving them. And there is much to be learned. This was a very close election. The incumbent Senator’s initial margin of 215 votes was less than one-hundredth of one percent of the 2.9 million votes cast. The article carefully describes the procedural and substantive issues in the recount, offering particular praise for the bipartisan (“tripartisan” with the independent included) makeup of the decision-making panel. The recount resulted in a 225 vote victory for the challenger, Al Franken, reversing the initial result two months after election day.
What followed was a court challenge (three months in the trial court; two and a half months on appeal) that eventually affirmed the recount. The central issue of dispute was the rejection in the recount of absentee ballots that had been rejected in the original count. Minnesota law set a high bar for recounts to overrule the initial decision to reject, and so in the court challenge both the merits of the decision under the law and the validity of the law itself were subject to challenge. Ned carefully unspools these different threads, providing broader lessons for rules for absentee ballots, for assessing their validity, for resolving election disputes generally, and about the meaning of Bush v. Gore. This tour de force provides a rich, permanent, and insightful record of the recount for future consideration. Ned concludes that the recount can be judged not only by the substantive and procedural judgments, but also by the political response to the outcome, so that the losing Senator’s “embrace of the law—and the law’s institutions—which handed him his defeat” is one the greatest badges of its success, although the time it took to reach was likely its greatest problem.
Edward B. Foley, How Fair Can Be Faster: The Lessons of Coleman v. Franken, 10 Election L.J. 187 (2011).
This is the second part of a two-part article in the nation’s leading journal in the election law field. Part one provided a detailed record and analysis of the contested Minnesota Senate election of 2008, which took more than seven months to resolve, though it was eventually resolved in a process that was widely accepted as legitimate and fair. One purpose of Part I was to provide a record for scholars to use in further research, and Part II is a brilliant first example.
As Ned describes, the resolution was both a great success (deemed legitimate and fair by all) and, had it been a presidential election instead, potentially a great failure (a result more than a half-year later, problematic for Senate, would have been useless in a presidential context). The burden of this article is to identify the elements of the process that could be used and accelerated to achieve fairness and legitimacy in the compressed time frame necessary in a presidential selection. The article offers a nuanced and scholarly discussion and proposes a model for how to go about it. That process includes (i) Congress amending the law to give the states until early January instead of until mid-December for their Presidential Electors to vote, (ii) conducting recounting and recanvassing simultaneously rather than seriatim, (iii) privileging “a structurally fair tribunal that is evenly balanced and impartial to both sides” as the decision-maker over the importance of the substantive debate between “strict construction” of vote procedures vs. voter intent, and (iv) immunity from federal review if the state uses such a balanced and impartial tribunal.
Edward B. Foley, The Separation of Electoral Powers, 74 Mont. L. Rev. 139 (2013).
Ned Foley takes the cardinal principle of separation of powers and applies it to election law to correct for the problems caused by our entrenched two-party system. When one party captures the legislature, it can manipulate election rules so that the two-party competition is no longer a fair fight. Foley offers gerrymandering, stricter voter ID, and reduced early voting as attempts “to tilt the electoral playing field in their favor.” He sees separation of electoral powers as the solution. This has two dimensions. First, he calls for the separation of the distinct domain of election law into the familiar three divisions: electoral legislative power (the power to enact election laws), electoral executive power (the power to administer election laws), and electoral judicial power (the power to adjudicate electoral disputes). Foley would vest these distinct electoral powers in three different nonpartisan institutions: an Elections Assembly, Elections Director, and Elections Court. The second dimension of separation is the recognition that these three electoral powers are not only separate from one another, but also separate from the three corresponding regular powers. For example, electoral legislative power should be kept separate from general legislative power by being vested in a separate Elections Assembly, rather than in the regular legislature. Foley describes this as vertical and horizontal dimensions—the vertical being the separation of the three electoral powers as a group from the three regular powers and the horizontal being the separation of the three electoral powers from each other. Foley then turns to more detailed description of these three new electoral institutions. The Elections Assembly would be composed of 100 randomly selected citizens, representing a cross-section of the citizenry, whose purpose is to decide what elections laws should be in their state. The Elections Director would be an appointed, nonpartisan expert with the primary role of educating the Elections Assembly with background information and briefing materials. While the Elections Director would be accountable for the day-to-day operation of the electoral process, Foley sees an additional multimember Elections Council as responsible for the administration of the electoral process. To appropriately adjudicate disputes, the Elections Court would be nonpartisan, nominated by a supermajority of the Council from a list of names suggested by the Director, and confirmed by three-fourths of the Assembly. Foley harbors no illusion that this system will be adopted anytime soon. Nonetheless, just as Madison improved upon Montesquieu, Foley seeks to improve upon Madison.
Edward B. Foley (w/Nathan L. Colvin), The Twelfth Amendment: A Constitutional Ticking Time Bomb, 64 UNIV. OF MIAMI L. REV. 475 (2010).
In this compelling historical article, Ned and his co-author (a 2010 graduate of the Moritz College of Law) play out in detail the ambiguities in the Constitution’s description of the process for selecting the President—after the popular vote has occurred—and the resultant problems that have arisen and could easily arise again, describe what the history shows and offer constitutional prescriptions to avoid a future crisis.
Questions center on determining the electors and the electoral vote and involve how much deference should be given to state determinations, how to determine the state determination that “counts,” and what body at the federal level (President of the Senate (typically the Vice President), the Senate, or both Houses, or ultimately, federal courts) should make the federal decision and under what standards. In short, there are many possible permutations, and an ambiguous constitutional provision was followed by the ambiguous Electoral Count Act of 1887 (of questionable constitutionality) passed by Congress in the aftermath of the Hayes-Tilden crisis.
The core problem boils down to who should decide the winner of a particular state’s electoral votes and under what standards, and the article’s historical treatment demonstrates the questions are from hypothetical. The problems presented and the likelihood of future crisis are sobering, and the article recognizes the difficulty of a fix, particularly because it would likely involve a constitutional amendment. Nonetheless, the authors intrepidly emphasize the need for a clear constitutional mandate of the final arbiter of such decisions (possibly a commission created for that purpose), with a statement that the decision-maker, whomever it might be, has exclusive jurisdiction. Then, “as far as humanly possible,” clear procedural rules should be set out in advance.
Edward B. Foley, The Founders’ Bush v. Gore: The 1792 Election Dispute and Its Continuing Relevance, 44 IND. L. REV. 23 (2010).
In 2008, Ned delivered the Ohio State University’s Distinguished Lecture, which was the precursor to this article. The article tells the fascinating story of this country’s first great electoral dispute—the 1792 battle over the New York gubernatorial outcome—while drawing parallels with the greatest election dispute of our time and lessons for the future. The issue in 1792 was whether ballots from Otsego County, which likely would have given the election to the Federalist John Jay, should be counted when (as a result of the decision of a partisan federalist official), the ballots had not been delivered to the Secretary of State in accordance with statutory procedures. Without those ballots, the election would go to the Democratic-Republican incumbent, George Clinton. The dispute was decided by a commission appointed by the state legislature that, after hearing arguments from the leading judicial figures of the day, decided the case 7-4 for Clinton, voting completely, or almost completely, along partisan lines.
Ned relates the story in compelling fashion and features several points of particular salience. First, “each side quickly staked out opposing positions on what would become the basic jurisprudential debate in vote-counting disputes throughout the history of election law in the United States,” to wit, strict enforcement of electoral rules “in order to protect the integrity of the electoral process” vs. lenient enforcement “to safeguard the right to vote.” Ned carefully demonstrates how little the nature of this core debate has changed over 200 years and suggests that, in order to move forward, a mechanism to explain when one value should trump the other must be developed, and he suggests that a just-initiated American Law Institute project may be a path to doing so. The article also examines the suggestion of James Kent, in connection with the 1792 dispute, that the deciding tribunal should be “equally biased,” i.e., balanced in its partisan make-up (as opposed to the 7-4 or 8-3 commission actually appointed), which Ned thinks may be one way forward. Secondly, Ned emphasizes how poorly equipped the framers themselves were to handle disputes about the electoral process. The framers were “entirely unprepared for the partisan influence in a disputed . . . election,” so there is no original approach or understanding; partisanship as it developed, and particularly its relevance to democratic elections, was utterly unanticipated. Thus, Ned concludes, in finding a solution, “in build[ing] for the future what the framers were unable to build for us,” we would be enhancing, rather than undermining “the project of constitutional democracy that they began for us.”
Edward B. Foley (w/Nathan L. Colvin), Lost Opportunity: Learning the Wrong Lesson from the Hayes-Tilden Dispute, 79 FORD. L. REV. 1043 (2010).
This article follows up on earlier work by Ned and his co-author (a 2010 graduate of the Moritz College of Law) closely analyzing the Constitution’s ambiguity with regard to the process, after the popular vote, for selecting the President and the many issues that have in fact arisen as a result. The 1876 Hayes-Tilden contest “was the most severe manifestation” of the problem, and thus “should have represented the best opportunity to fix” it. Instead, Congress struggled for eleven years before enacting the Electoral Count Act (“ECA”) which, the article explains, has been confusing, unwieldy and ultimately a failure in resolving the Constitution’s shortcomings. This article carefully examines the eleven years of legislative struggle that preceded the ECA, in hopes of providing guidance to better reform efforts in the aftermath of the 2010 presidential selection debacle.
Ned has previously urged a form of a neutral commission as the best vehicle for resolving such disputes, and the article explains why that alternative was not seriously considered during the debate leading to the ECA, even though—in fact, partly because—a commission had been used to resolve Hayes-Tilden. The article also details the surprising role partisanship did and did not play in the debate, concluding interestingly that split party control of Congress ultimately was crucial to getting anything agreed upon. The article concludes that, if Supreme Court intervention is to be avoided in the inevitable next dispute about presidential succession, Congress must act and “now is the perfect time for all interested parties to make proposals.” In recounting the history, the article does not downplay the difficulty of such reform, but it also underscores the “paramount national need to surmount these difficulties.”
Edward B. Foley, Electoral Dispute Resolution: The Need for a New Sub-Specialty, 27 OHIO STATE J. ON DISP. RESOLUTION 281 (2012).
In this essay Ned calls for development of a new field: electoral dispute resolution — “the previously uncharted intersection of two existing fields: election law and dispute resolution.” Ned notes that election disputes have some distinctive features (such as often being a zero-sum game) that require adjustment from some of the more traditional areas for alternative dispute resolution (such as labor-management relations) as well as certain political pathologies. At the same time, Ned explains how electoral disputes differ from other political disputes, creating the need for this distinctive field of work. The hope “is that the newly emerging field of electoral dispute resolution can pursue the development of neo-Madisonian solutions to the original Madisonian problem.” If resolving the problem takes “several generations,” so be it. Ned points, with specific examples, to both the need and the advances that suggest solutions are possible.
Edward B. Foley, Michael J. Pitts & Joshua A. Douglas, Election Law and Litigation: The Judicial Regulation of Politics (2014).
This is the first edition of Ned’s casebook in the election law field. It joins Family Law as a subject in which Moritz has multiple authors of casebooks in the field. The book is divided into four parts “designed to reflect what might be considered the natural lifecycle of the process that governs any particular election.” Thus, the book starts with the law of districting, which defines what is at stake in a particular election and includes study of the crucial one-person one-vote concept. The second part, brief in comparison to the others, covers the law of nominating candidates. The third part covers the massive topic of the law of campaign practices, which includes campaign advertising and campaign finance. The final part covers the law of voting, where voter eligibility and registration, early voting and counting disputes are found. Election Law is very much a subject of the past half-century, with both statutory and case law that have developed in the lifetime of those old enough to remember the first lunar landing. The authors pay consistent attention to the overarching issues of the federal/state balance that underlays election law, as well as with the fundamental question: “to what extent, if at all, should the judiciary attempt to resolve election disputes, being as they are often contests between the two major political parties,” given, the authors say, that “it is important that judges be seen as independent of partisan politics.”
Edward B. Foley, Democracy in the United States, 2020 and Beyond: How Can Scholarly Research Shape a Vision and Help Realize It?, in Race, Reform, and Regulation of the Electoral Process, recurring puzzles in American democracy (Guy-Uriel E. Charles et al. eds. Cambridge 2011).
In this substantial book chapter, Ned surveys the field of electoral reform and sets a series of “mid-range” reform goals that might realistically (if optimistically) be achieved by 2020, “a nice gift to the children born in the year of Bush v. Gore . . . as it will be the first year in which they are eligible to vote in a presidential election.” The chapter begins with a sobering description of just how little has been accomplished since the 2000 election, when inadequate procedures “transformed the problem of ‘hanging chads’ into the calamity of a Court-ordered halt to a recount.
Yet, there is much that can be accomplished, even in the relatively short-term before 2020 (compared to some longer-term projects, such as reform of the electoral college, that would require constitutional amendment). This includes creating a state-of-the-art voting infrastructure that would better cope with the issues raised by advances in provisional, mail-in, and absentee voting and that, through technological advancement could both advance voting access and create secure verification—two goals that have been largely in competition with each other. The chapter also calls for more systematic “war-gaming” of potential electoral problems in advance of actual disputes to help avoid certain problems and resolve more fairly and objectively other problems that inevitably do arise. Ned also advocates “adopting a Model Code, at least for resolving disputed presidential elections”—defusing a time bomb that is ready to explode every four years as Ned has extensively detailed elsewhere—together with suggestions of how Congress can constitutionally create a powerful incentive for states to enact the Model Code. The chapter also addresses such other reforms as nonpartisan election administration and analyzing the value of pre-election litigation.
Edward B. Foley, Recounts: Elections in Overtime, in Law and Election Politics 149-170 (Matthew J. Streb ed., 2013) (2004).
Now in its second edition, Law and Election Politics, explores the intersection of political behavior and legal rules in the context of the most important political event—elections. Ned Foley contributes a chapter on recounts, where he makes the case that when the political stakes are high, and elections end up with narrow vote margins, candidates turn to the legal apparatus of recounts vote-counting disputes for resolution. The legal apparatus, however, is rusty. The rarity of such contests mixed with the involvement of inexperienced, yet partisan officials creates a “recipe for significant controversy.” For some nineteenth century gubernatorial races, political controversy over ballots turned to bullets. Although the disputed presidential elections of 1876 and 2000 were resolved without violence, both were characterized by strictly partisan behavior, inadequate legal apparatus, and of course, controversy. Foley sees no end in sight because of the preoccupation with pre-voting rules (like campaign financing and voter registration) and lack of attention to post-voting rules. Ironically, it is the lack of partisan preference concerning vote-counting rules that doom them; there is simply no political incentive to focus on them.
Edward B. Foley, A Tale of Two Teams, reviewing Jay Weiner, THIS IS NOT FLORIDA: HOW AL FRANKEN WON THE MINNESOTA SENATE RECOUNT (Univ. Minn. Press 2010), 10 Election L. J. 475 (2011).
Ned is the leading academic expert on the Minnesota recount, so he is well-positioned to review this blow-by-blow account written by a sportswriter who ended up being assigned to daily coverage of the senate battle by an online Minnesota daily. Ned gives Weiner generous praise for strengths that may be traced to his journalistic and sports writing background. The book is “vivid in its details,” “you are in the room with all the participants,” and the personalities of those involved are especially well described. “Most valuable of all,” Weiner was able to get the judges involved to share some of their internal feelings about what was going on, leaving readers “grateful that Wiener is able to give this normally unavailable glimpse behind the judicial curtain.” Finally, Ned is in deep agreement with the essential conclusion of the book captured in the title: the Minnesota recount was entirely different (in a good way) from Florida in 2000 (Ned, of course, has analyzed why this was so). Not surprisingly, Ned concludes that Weiner is much less strong in his description of some of the legal arguments, in particular underplaying the potential merits of some of Norm Coleman’s positions. Nonetheless, “the favoritism displayed for one side of the dispute is not a reason not to read” the book. Its “vivid description of how it felt for all the relevant players to live through this intense and important experience” not only makes it an interesting read, but “gives the book lasting value” as a contribution to understanding “the psychology of democratic politics.”