you're entering the voting booth. i'm john fortier of a guy and i'm down for the election

assistance commission. and this is a podcast about the inner workings of elections. a little bit of exploration. we have a guest today. edward foley foley of ohio state law school will introduce him more properly in a minute. but we are having a podcast here with a live audience and lots of ways to watch. it will be hearing from you. ah, you'll hear from us and the regular podcast mode. we also c-span here. so some of you may be us from afar. and we also have an american enterprise institute live feed. and on that feed we actually will be taking some questions. those questions not make it all into the podcast, be part of this event, but you'll still be able to ask that either in the room or there and just to give you the logistic ex the way to ask a question online is to email joanne lee. that's a e h u.n. dot ali at dawg or two on twitter x to use

the hashtag a aei voting booth. so we hope submit your questions. we'll have some time that at the end with us today is that who is professor law at ohio state university. you've heard us you've heard him on our podcast before we discussed the trump v andersen case earlier in the year. nad is one of our leading experts on election law, and that means current election law issues that we talked about today. but that has also been the author of a book and now with a new edition, a book called ballot battles the history of disputed elections in the united states. and this truly is a very important scholarly work, as well as very important for today's world looking at many of the disputed elections that have really come since our founding. the idea of disputed elections, how we resolve and this book had some impact and i learned a lot

from it back when the first edition came out in 2015. but as can imagine, we've had some other things happen since then and we have really more to talk about and that has put out an updated edition which is just out, just available for labor day gifts going, back to school gifts, i don't know, early gifts, christmas gift, not early ever to get this book. i highly recommend it. and we're going to have an opportunity to talk with ned this today. so, ned foley, welcome to the voting booth. thanks so much for having me. it's great to here, ned. welcome. thank you for being here today. let's talk a little bit about the broad theme of battles and how we should and how have we sort of treated and resolve elections. and there have been a number these it's a very historic book. let's talk a little bit. we start with john jay's 1792 governors election to illustrate where there was concern about the legitimacy the election and some concern about that.

let's talk about the book and that particular race for sure, one of the fun things about doing the research for this book was discovering all these things about american history that i had never known before, had heard of john jay, one of the founders, authors of the federalist. but i had no idea had been involved and in a dispute. and that particular is really the first big one that we've had in our history. and all of the themes of subsequent disputes are there at the beginning. and so you can see the founders wrestling with this problem and the thing from my perspective is they didn't have a good solution to it. they were working through it on the fly as they were going through. it wasn't like they had all the answers ahead of time. and so you see james madison writing letters to thomas and back and forth and alexander hamilton is operating kind of as the campaign manager for john jay's effort to become governor. new york and the other thing that didn't occur to me i

studied this was being the governor of new york was more important, being the chief justice of the united states at the time, john jay was the chief justice and he was to give up that job to governor of new york. we wouldn't think of the trade today but federalism being what it was states being important being. the governor of new york was a really big deal and the particular details of the dispute we could discuss there not important. what's important is both had a plausible claim to the validity of the disputed ballots and the ballots in dispute were from cooperstown, new york if any of you are baseball fans. there was no baseball hall of fame back then, but it was that town and there was some ugly things going on in that town people are accusing the local leaders of partizanship and again the founders didn't want political parties right that they write the federalist papers

to hope that they can have and balances in separation of powers we can keep factions at bay not form parties. but 1792 is the big beginning of political parties being created in the united states in earnest, both at the national level, between madison on the one hand and hamilton on the other. and then it's playing out in new york politics as well. and so takes over that and there's a particular institution that's set up by the legislature to determine the outcome and. one side accuses the other of rigging. if you that term the the tribunal to decide case as imbalance to one party instead of the other. i can go on it gets very ugly it almost becomes a little civil war within the state of new york. local militias are getting involved. some shots are fired and thankfully no one was killed. but it's an example of very at

the beginning of our country, we're not so well equipped to it. and it's because it's a governor's race and gubernatorial elections are a new thing for this young country. and we could talk about that more if it makes and if i could follow, i netted i have known each other not too long after bush v gore and we've been talking about these issues in various ways over the years. and i will say we probably had a little bit of a dispute. we agree on a lot of things. one of them we disagree on typically is i think that at the end of the day, you hope that when we get to the final stage of resolving the election, that the sort neutral arbiter will decide that whether a judge or a panel or some ways and and i guess i'm probably a little comfortable with parts of the political process being there at. that final arbiter stage that probably makes you a more fair person. i do, but i appreciate all of your work. the book in some ways i don't want to say it's an argument against my position. it is an argument just to show that. so so one, talk a little bit

about that, but i guess i want to put it in two ways. you mentioned this. governors election that was different. one of the things that's different about elections, especially at the beginning, still persists today is that legislatures determine outcome of their own elections. they were the final arbiter. so the house of representatives today still is the final arbiter of a dispute over a house election. the state legislatures, same thing in the states they always were. and at the beginning we had state legislative elections. but had these governor's races were a little different. so can you talk a little bit about the neutral arbiter principle, the political side and especially legislatures just being the final arbiters of their own decision that i think really plays through the entire stream of your book? no, i think that's exactly right. one of the things that i realized doing research was the stakes. a single seat in legislature usually are not that high, yes, the constituents want their candidate to win. but in the house of representatives, you know, 435

members unless the chamber is so divided that that one seat is going to make a difference that the itself can resolve it without political instability. there have been a couple of episodes that are discussed in the book where a single seat or a couple of seats in the house might determine partizan control. and those disputes can get a little ugly that that reason. but for the most part having the chamber be the judge of its own has served the country adequately. sometimes for example, the so-called bloody eight. thank goodness. there was no bloodshed back and indiana in the 1980s one party really felt like it was robbed a victory by the other party so that can lead to bad feelings but doesn't lead to huge political instability. the the young didn't know how to handle disputes over chief executive whether it was a governor's election at the state level or a presidential election, the national level. these new things.

and they hadn't thought it through. they just were they had a lot to think about and they just hadn't foreseen how to handle a dispute over a major executive. i mean, the king wasn't elected and colonial weren't elected. and so an elected chief executive was a was new thing. and so what's the institution do that? should it be the legislature? the separation of powers? doesn't doesn't really want the legislature to control the of that. should it be the courts they hadn't really set up judicial processes for that. so in this new york example they the legislature invented this unique tribunal but it wasn't balanced. and coming back to this that we've had over the years, there was a the legal world. there's a famous american judge and legal scholar named james kent from the state of new revered, where where i went to law school in new york and james kent was a young lawyer involved in this dispute on john jay's

side, as it were. and he writes a letter to his brother in the midst of the dispute, saying, we need an equally biased tribunal. that's the phrase he used because he sees the tribunal is biased favor of the other party. the the jeffersonian party, not the the federalist party. and he thinks it's very unfair, but he doesn't have the words to talk about impartiality or neutral. but he's groping for that concept and saying, want something that's equally biased. so right there at the beginning of our country we don't have the answer yet, but it's like what's supposed to be the the method that's perceived by both sides that really want to win, think they have a legitimate claim? what's right method to to resolve this is it to be resolved by a fair tribunal or through some procedure. so certainly just leading up to that with the need for a

neutral, you know, sort of arbiter, we go to the 1876 presidents election. hayes versus told to which is the most disputed presidential election today. and, you know, we went to the edge, the constitutional cliff, the results weren't until literally the swearing in the next president. what happened there. and you know, talk about some of the research into that race and why it's relevant today. yes. and that is think the big one, right. if there's any election, i think we should teach in schools so that all americans of understand the history. i would, i would vote for that one and it does involve, among many other themes, the question of what's the tribunal? because again, it is congress supposed to be the institution to settle the dispute just to set the stage. many of you may know this already, but this is in the aftermath of the civil war during reconstruction, reconstruct often is the folks were in favor of reconstruction

and, civil rights and the republican party at the time, president grant ending second term has wanted to vindicate the 14th amendment. the 15th amendment, voting rights and civil. but that is losing, frankly, to the forces of so-called redemption the democratic parties particularly the south, wants to undo reconstruction and gain back local control and there's warning signs that something cataclysmic happen four years earlier, in 1872, discussed the book. we don't need to get into the details now, but some ugliness a lot of ugliness in 1872. so things are very fraught and hayes is the candidate for the party. samuel from new york, governor, new york candidate for the democrats and the dispute is primarily over the three

southern states because still control the apparatus of government, including the boards that are going to count the ballots. but democrats are gaining strength, including gaining in strength by really ugly intimidation tactics suppression tactics in south louisiana and florida. if. hayes gets all of those states electoral votes ekes out, a bare majority of electoral votes, tilden needs one electoral vote from any of these disputed states to get a majority and to make a very long story relatively shorter. the dispute ends up in congress because competing slates of electoral votes get sent from these contested states and is divided into. it's one thing for the house to decide its own because it's one chamber deciding itself or the same on the senate. but when you have bicameral

wisdom and partizanship, you could have deadlock. and that's what happened the republicans control. the senate, the democrats, the south, they couldn't as control the house. sorry. and so what's going to be resolution? we need a new president by inauguration day. so they create a commission they try to adopt the neutral tribunal model and they but they up a very complicated version of it they have 15 members of a special very balanced there five senators, five members of the house, five supreme court justices. they're going to be seven republicans, seven democrats. and one of the justices is supposed to be a neutral. and they they know who it's going to be for the mechanism that they set up. and he refuses to serve. and so they're left the way they structured the law. they need another supreme court justice. but there isn't anyone perceived as neutral. so they add an extra republican. to the 15 member panel. and so every decision that this

15 member board makes over florida first and then louisiana, then south carolina, it's all 8 to 7. and so it's perceived the other side as just biased biased, biased, partizan, partizanship. and there's more to the story. it shows an attempt to create a fair tribunal but the important implementation didn't work. so this is a very rich book with a lot it's not comprehensive. there been many, many disputes, but is it is thorough and there are many instances that that are very interesting but we're going to skip through many of them from 1976 up to 2000, which is in the memory of at least some of the people in this room. and some of our listeners, not too ago. and important so bring. into 2000 where some of these and the memories of 1876 are people reminding themselves of that are part of that story. what what the summary and the

big takeaway of the 2000 election and bush v or so i mean again that was a genuine dispute it really was a jump ball given how close florida was and the fact that florida got florida would win the electoral college. there's things discussed in the in the book like people may remember the term butterfly ballot which was pretty much outcome determinative but not in a way the courts could handle. we could get the technical details, some things courts can fix in litigation afterwards and some things they can't. and the problems of the butterfly ballot just were not susceptible to being fixed. arguably the so-called hanging chads, which was another problem, was susceptible to a judicial dispute. there's story to be told about the tactics. the gore, al gore, the democratic candidate that year, used. i think with hindsight, if they

had differently, they could have put themselves in a better i think ultimately the outcome would have been the same. i think no matter which way you move the pieces on the chessboard, the end, george bush is going to end up being president. so for any of those out there who think the democrats were robbed, i really don't think that's true i also think the us supreme court has gotten some unfair criticism for how it handled the case. you again, they're reasonable positions to have on both sides of the equal protection issue about how to treat these so-called hanging, which people don't remember live through it. these are these odd there's a kind of paper ballot that had little particles that would be dislodged when you used a card and the question was how they were going to be treated? and the principle that the supreme court adopted, if you're

caught up in the disputed the minutemen is a pretty fair principle. the principle is that all ballots that look alike in terms of the degree to which they've punctured should be treated the same. and if some of these ballots, one part of florida in a statewide election are being treated the exact same ballot, in another part of florida, a problem, they then more controversially remember it didn't remain the the dissenters wanted the state of florida have another chance to fix issue and the the majority said no, time's up and we've met the deadline can't can't do it but the my take on this is that in a dispute this nature where there's reasoned positions on sides, you do need a tribunal. maybe, again, you could have constructed a fair tribunal with one republican, one democrat, and one neutral. hard to do in the of a of a heated election like hayes tilden chose as an 1876. and unless you set up in well in

advance with contingency and so if you need a tribunal the judicial tribunal is going to be better an ostensibly tribunal maybe, judges are going to be affected, but they're to try to settle these things pursuant to the rule of law and my hope had been that whether you like that decision or not, the basic principle that this is going to be governed by law, by constitutional values, equal protection would actually be a good thing for the country going forward. and just to follow up on a little bit, because i know don is going to take us into 2020, but two things. one, you are probably a little more favorable towards bush record some some election law scholars. but you do note, i think all of us note the significant rise in election litigation, law litigation since bush-gore. i don't know if you want to speak to that, but is that many of us got interested in

elections because of bush record. but also avenues were opened up. bush-gore perhaps opened up shop is what's your thought about the follow to two bush v gore. yes so i think again, i learned a whole lot working on this book, to be honest and one of the things i learned is that there was an effort in there was a dispute in 1899 over a very ugly election, kentucky, that went to the us court where the so-called dissenter, john marshall harlan, who dissented in plessy versus ferguson, gets vindicated in brown versus of education. he writes incredibly eloquent dissent, saying that when is unfair of the partizan manipulation of the votes to deprive the citizens of the true count of the valid result that should be seen as a 14th amendment violation, because the whole point of the 14th amendment was to bring into

federal vindication of fundamental liberties, fundamental rights, fair process, due process, equal protection, these things. and so to have an election stolen by political ignoring the truth he said that should be unconstitutional. and like his dissent in plessy versus versus ferguson he's, the only dissenter but and so the for most of the 20th century the rule the other way that these disputes. ballots just is not a federal issue and lyndon johnson an important race in 1948 that where the us supreme court again says we're not touching, we don't touch these things. the the supreme court's invocation of equal protection in bush versus gore is a vintage version of john marshall. harlan dissent in this case versus beckham. and because it's essentially the same principle. yes, the 14th amendment will protect the sanctity of true

results as the court the court, the us supreme court thought, the florida judicial system was trying to manipulate the process and unfair. really. how does this change come about? because it's a complete 180 reversal from 1900 to 2000 over the course of the century. and the reversal is caused intermittently in steps because you don't get constitutional ization of voting at all until the warren court in the 1960s creates the one person, one vote principle in redistricting law and then uses the one person, one vote principle to say there can't be poll taxes. in virginia, for example. and so we some constitutional rights with respect to voting in the 1960s, but they're never used in the context of counting votes until later on. it first happens at the lower court level in an important case from in the 1990s, which we

could talk about in a case in rhode island in the 1970s. another important one. but bush versus gore, the first time that the warren court jurisprudence about equal voting rights gets utilized in the context of counting votes. and so two more quick votes were done so so one just to note the 1899 election that ned referred to and he referred to the higher legal principles behind it, just maybe from a more voyeuristic look at this, this is the terrible election. the only time we've had a sitting or a governor assassinated. and it essentially was a kind of war of two gangs. so this is a not a pretty sight, even though we're talking about legal principle coming of it, but coming back to 2000, following on and leading into dan's question about 20, 20, there's a you mentioned a lot of the developments and there are a lot of specific stories there. happens to be one story, a good story about the 2013 recount in

a very close race and an attorney general race in virginia. i happened to note that my colleague here, co-host dawn palmer, was the was the election director in virginia at that time. so so you're part of the good part of the story, don. can you just tell us a little bit either something about and don, if you want to weigh in but, also just some of the quick developments, 2000, 2000, 20 before dawn moves us into that, i, i don't mention don by name i'm sorry, but i do cite that example as a job well done. virginia, frankly it's not the only instance in which virginia has done particularly well in handling some very close, very divisive races, attorney generals races, for example, some state legislative races that were where the where the chain of control of chamber really hung on the balance. so do think if if virginia has a to be told about to do this right it should share it with the rest of the country. the one thing i commented on in the book and i wish the this

could be replicated this was twitter hadn't really developed very much by 2013 and twitter was used in a very positive way at the time by giving transparency there was a there were tweets, you know, all over saying, oh, we've we've, you know, we've counted we this during the canvasing of the returns sort updated verification of the results and technical corrections where it needed to be corrections in that transparency. i think led to a sense of yeah, this is on the up and up. nothing's been done by sleight of hand weren't any conspiracy theories running around twitter about things gone wrong and so i wish twitter could be used for good as opposed to too ill. that was something i noticed about it, but i'd be don. what your sense of? oh, i you did. i think that one of the important things was the transparency. and you did have informal through twitter at the time. but during that canvasing when there were changes and that is when in ballot totals take as

long as that's a transparent process. the of the campaigns weren't upset they could see what was happening they could confirm that there was an error or something at the local level. so i think transparency real time is really important because, you know, everyone's observing the election before we move on to the next question. so i just want say, you know, after the 2000 election, you know you talk about rule of law and fairness and you also mentioned the accuracy the results was a real issue leading up to. and so i think the help america vote act we've had increase in the accuracy of elections. where do you think we are on the rule of law and sort of those issues that you point has the help america vote act in 2000 after the 2000 election has its reach reached its potential or do we still need to do? yeah, no, i think that i think we are improving. i think provisional ballots are hugely important. and i think to some extent, we haven't fully utilized or fully

brought into the consciousness just how important it is to have that safety valve valve that the book talks about a triangle of important quality to any system to handle these incredible, intense disputes. the first leg of the triangle is good rules, good laws because you can avoid disputes if your laws are clear and your administration processes good, your machines are good. so you want to avoid disputes at the front end as much as you can. and i think we have made tremendous both, frankly in the 20th century, that we did better in the 19th century and, even since 2000, with the help american vote act and changes that at the local. the reason why you need institutions is laws can never be clairvoyant and perfect advance. so if a dispute if, a genuine dispute arises, somebody is going to have to settle it. so you institute or your second leg of the triangle, if you

will. the third is humans, human virtue human character at some point in an intense this dispute, you need good people people of goodwill, good faith, trying do the right thing. if your rules don't handle it and your institutions aren't aren't so as a society, we need to constantly try to make progress on all three of these dimensions. rules, institutions and virtue. and i keep promising dan is going to talk about that in 20. i have one last interjection. i do note joining us in the room been dan's colleague on the eeoc, commissioner hicks, but also cameron, who was the predecessor of running elections in virginia. so we do have some wealth of knowledge in the room here. second, i want to give a quick out on the twitter point in 2013 to david wasserman of the cook political report. many of, you know him today with his election analysis. he really was the one behind that. and then finally, well, let's

turn over to don. i have a third point, but i am going to move on to 20, 20. well, we have a new section of the book called on the 2020 election, and, you know, reading it, it's a detailed accounting of the drama that occurred with potential electoral slates. what's on in the senate, what's going on with groups of senators and in the end, in each individual states, what was important about that election from your perspective in having it to the book? yeah, well, it it really changes the i mean all the other chapters in a sense are still the same because the facts about 1876 haven't changed or the facts 1792. but my perspective on the totality of american history changed. i regret be less optimistic. i talked about how i was optimistic that the rule of law going throughout this coming century would be a vehicle for doing a better job. and i thought bush versus gore

for all its wrinkles, might be a harbinger of that. but 2020 was something that we had never seen in any of these disputes. because, you know, from my perspective david and i try to be nonpartisan and try to understand it as a scholar really going on, this was first dispute where there wasn't really anything genuine to fight about over the result could complain about the change of rules prior to casting the ballots because of response to covid. that's different story there. but but those were settled voters ballots pursuant to those rules. and even if you didn't like those rules, there was no doubt which candidate won the relevant states make an electoral college a majority, so the denial of the reality of the result was something that i had never seen in any of history, that i had researched. and john talked about how there's many that we haven't talked about.

the first draft of the first edition was, 50% longer than what it was in the publisher. ed said, no, no, no, you've got to cut this down to, you know, reasonable size make some editorial judgments about so i tried to be as thorough i could in studying this topic, but all previous disputes were genuine in that sense. and the. 2020 dispute was not genuine it was not based on reality. the incumbent president trump and his own attorney general told him that his own campaign advisers told him that i think, again, if we're focusing on the of the matter, we have to acknowledge that. and so to me, what 2020 shows is it's a confluence of two traits in american history have never been brought together before. one is fighting over election which are important and people want to win. that's this book is all about. but other trait is what a

prominent historian named richard hofstadter called the paranoid style of american politics. he wrote a book with that title after the red scare. mccarthy ism in the 1950s and the way he explained that difficult period of american history was that it was a recurring of this so-called paranoid style, which started with the salem witch trials, went through the no nothing movement in the anti-immigration of the 19th century. and so there's been these episodes of american history where the political culture engulfed in in a kind of mass, whether it's hysteria or whatever you want to call it, it's just a flight from grounded reality and it happened over the joe said there are communists in the state department waving a list of the names of communists, he said in the state wasn't true. it was he was a demagogue and he had fabricated this but he was charismatic and the country

became engulfed for four years in mccarthyism until it ended and when rudy was saying here are the names of the fake voters in pennsylvania it was joe mccarthy all over again, not having any basis in reality. but giuliani was a charismatic figure from his political career. president trump obviously a charismatic figure, as we know and and so i what happened in 2020 as electoral mccarthyism it was this paranoid style apply to the voting process. and that never before and that's very dangerous i think, for the conduct democracy because it's one thing to kind of get all of touch with reality about whether they're communists in the state department. that's not good. but to lose sight of reality over, voting, voting is, self-government, government of the people by the people, for the people. we have to be reality based and grounded in the truth as we count ballots, as we as we do this.

so, you know, the the good news perspective, if you to call it that with respect to this analogy to mccarthyism is it only lasted four years and. so, you know, we're sort of in the fourth year arguable of of with, you know, large number of americans, citizens not believing that the 2020 was valid because of of this denialism. this fever may break because of how 2024 unfolds. and hopefully will cast votes properly and count them and have a sense of, yes, we can do this we can run elections and be accept the truth, whichever side wins and. if that's how this happens, then we'll look back on that difficult as analogous to, you know, where these paranoid moments we thankfully was able to in the past. that's sort of what i'm hoping will happen if this flight from

reality, with respect to the voting process really takes then becomes a pervasive of american politics. i think we're really in trouble. so i want to follow up, especially 2020 in some of the electoral machinery. but first, just a quickly return to the 2000 election and the follow up couple, regular listeners and those who don't know will that will want to go back and look at a couple. we did one with doug lewis on the passage of the help america act, what was in the act, how it got done, which is a really quite interesting story, a bipartisan story. and second, another episode with ron turner, supervisor of elections in sarasota, florida, about on the ground how the changes in what we've done in the help america vote act have been implemented by local election officials. and what things look like. but back to 2020, i think we were kind of electoral college geeks before 2020, but many americans did not follow the

inner workings of what happens after election day, the votes of the electors, and especially january six, the counting of the votes. so having to have you say something about how the counting the votes went on january 6th, but also maybe we can focus a little bit on the in the aftermath of 2020, we have passed a new law, the electoral count act, which attempts to put on a better footing for january 6th and counting and fewer possibilities for disputes clarification of things that were left unclear. say something about the electoral were steering something about this act and, how you feel about it and whether that is going to serve us well in the future. yeah, i do think the the that was about in a bipartisan reform led by senators and collins and manchin by the end of 2020 to put in place new law which is a huge improvement over the previous the previous law had some really unfortunate

ambiguities convoluted nature of the book talks about how it took them a decade between 1876 and 1887 to come up with a law. they knew they needed a law. and it took congress years back then. and it was they knew it wasn't a great law, but they papered over some differences to have something instead of nothing but left that ambiguity to potentially be. and it it allow people like john eastman, for example, to try to exploit law for partizan advantage. and we have closed those loopholes and you know, to go back to this earlier discussion about should we try to design a good institution or should we try to get good rules. i think the philosophy of the electoral count reform is in the current polarized times that we live in it's very going to be very hard to have to identify who's a genuine neutral person that you would say we're going to entrust to the resolution of

a disputed presidential election, to somebody who neither a democrat nor a republican, but somebody who is every body can trust and. the first edition of the book was more optimistic that we could find that that, you know, neutral tribunal still hope that we get to the point and in our future where can come back to that but i think the the the value of the new statute that we have, the philosophy that we've adopted going into this year's election and then for the foreseeable future is, like let's batten down the hatches as much as can through law that lack ambiguity and are really going to give us clear results that we have to follow to the to the rules. so we are just days after the assassination on former president donald trump. now you have these sections in the book on political violence. in fact, there's some discussion about the 1899 kentucky cubana trail race, which resulted in

the south assassination. tell us about that section of the book and the history you what's the you know, tell us about the history and the recent shooting. yeah with it this is something that worried me writing the new edition over the last couple of and obviously worries me even over the last couple of days the again the good news story from perspective of 2015 when the first edition came out, was that it seemed like had put violence over electoral disputes in our past. the 19th century has. quite a number of episodes, unfortunately, with significant violence or threats of violence. and it's all over the country, it's kentucky, it's main it's pennsylvania, it's louisiana. so it's not regional thing. it's and it's not localized to any particular time within the

19th century. it happens in the 1830s. it happens in 1870s. it happens in the 1890s. we can talk about why there was conditions, extreme partizan, polarization in the so-called gilded age in the 1880s and 19 and 1890s, which i think is why you saw violence in in states like maine and even a little bit of threat of it in rhode island, kentucky and connecticut at the time. but the really incredible good news about the 21st century is that really disappeared starting with the progressive era women's suffrage. i don't know whether that was a factor or not in just terms of changing the character or sort of who votes and who's involved in elections. but but really starting in in the 19 tens through. 1946 vs eight is nineties, we still have these disputes that

are talked about, but violence disappears and no threat of violence in bush gore, despite how close that was, were protests. but with no risk of violence and. and so the the the the unknown question. you can just observe the facts that the facts is that between. 2015 and now now now there has there was january six which clearly involved violence, the horrific assassination attempt two days ago. there's been the threats against election administrators that you know well about. and so politically, the threat of political violence, actual political violence, has our culture in a way that it didn't exist for a century. and have to go back into the 19th century to find equivalent versions of it. and so where are we in that regard. is this a a fleeting, terrible

period that we can escape? is it again, associate it with electoral mccarthyism so that we can get rid of that paranoid style of politics? we can then get of the violence associated with it and get back to normality. i hope so. the risk is it's more long term than that. and if if if it is more term, then that we're we're potentially faced with a period of american history which we didn't have in our lifetimes before. it looks a lot more like the 19th century than the 20th century. it would be a form of backslide in which i hope we don't have. but as a scholar, you have to that question and worry about that possibility. and one little follow up before we turn to our final two questions for for ned and that is and i think i'm actually going to fill in some of the period you grow peaceful with some some violent. but the question of violence against a president or candidate rather than someone in office. and of course had bobby kennedy

in 1968. we also think many people forget this is not a candidate exactly but president elect fdr before took office there was a very serious attack on him, killing some of the people in the car with him just a month or so before he was going to take office. is there something to be said about the issues relating to violence on the campaign trail or before someone takes office that that you can highlight through some of your your research? well, that's a that's a fair point. and those episodes clearly are true. in 1968 was horrific with assassination of both kennedy king. the only thing i would say in addition to that is i mean and obviously that assassination attempt to two days ago wasn't involved vote counting. it was a involving politics. you know, this book focuses on counting votes and what happens

when the after polls close and you're trying to count the votes and see what the result is. and we had periods of political violence specifically with respect to that. again, largely in the 19th century, the assassination kentucky was during the vote counting period, the bullet was fired from the secretary of state's office, if you can believe it so. and that's you know, we didn't have disputed elections in the 20th century, not the 1960s or the thirties, where fighting over the who won. we're going to get the swords or the guns or whatever order to to win this the way you saw in the 19th century january sixth is violence as part of the contestation of who's going to hold office in the midst of a dispute over, who's the legitimate winner?

again i don't think there was a genuine dispute, but it was violence in the context of fighting over the result of the election. so i will sort of clarify and narrow my answer in that respect. so we always our podcast in just a note for those of you that listen to the watching it or watching on c-span, we're to continue a bit beyond the podcast, some questions. but we always in the podcast two questions and that has been a guest on our show before. you can go back and listen to our trump v anderson episode. so in a way we don't want them to repeat ourselves. we're going to adjust our questions a bit. so my my question to you usually we ask about how you got into but i'm going to ask how did you get into writing this book researching this? there was an earlier edition into this book, the history of disputed elections. and now you know that you all you know, what would you tell your prior self? what was it that the early ned didn't get about this, that he learned throughout the project? well, i would tell most of it would be, you know, be prepared that it's going to take a time to write a book that covers of american history, even if just

one slice of it, but starts at the founding and goes to the present. because i actually started working on this book, believing it in 2007. it was in the post bush versus gore environment and the goal it was not designed to be a history book if you can believe it it was designed to be a book. what are best practices? respect to recounts and elections. and so can we look can we do a 50 state survey and figure out which state like virginia does it the best and and replicate that and just have all the states use the model and what was quickly. in 2007 was that that methodology wasn't going to satisfy me in terms of finding an answer because understanding how these disputes get handled, it isn't good enough just to know what are the rules listed

in the statute books. you have to know how it actually plays out in crucible of the context and the contestation and that differs whether it's a high race like president or a relatively low stakes race like city council so that you can read a judicial opinion about what we should do to resolve the city council dispute. it doesn't really give you the flavor if. what if that same dispute would have happened with respect to a us senate race or a governor's race? so i said, let's, let's. and the law lawyers method is to look for precedent that's most recent. you don't to go back any further in time to find an older case. if a newer case will settle the issue. but that's what drove me back the way to 1792. i, i really didn't understand this topic and didn't understand how the nation dealt with this topic without going all the way back to the beginning. and so it took a lot longer and then relatively on in working on the book in 2008.

some of you may remember had a huge disputed election over a us senate seat. this was al franken, norm coleman and and so i watched that dispute unfold as i was thinking about the larger point, the book and almost took a detour to write a book about that and said, no, no, no. it'll just up being a chapter in this one. so, so that's what me into this project and it took a completely different turn in terms of methodology i would have told myself be prepared for a long labor of love because not going to be written very quickly. so this is you've obviously researched hundreds if thousands of disputed elections and again you said you may read an opinion, you may get the historic record. but what's funny or notable incident that you research that you'd like to share, you know, of the disputed election, some controversy in the book that we

would have been able to talk to yet today. well, what's fun about the book? thankfully, people have told me about the first edition is it's written in a style. it's not written. you know to be just dry analytics. so these are good stories. there's a lot of drama in each of these episode, you know, you could make a good tv show or tv series about each of these things. and so i think can read it on that level. so i go through all of them, but maybe to be optimistic and you know, and think the better angels of our nature, so to speak, in the 1830s in massachusetts, there is a gubernatorial election and edward everett was the incumbent and he's mostly famous for delivering an incredibly long speech when the gettysburg address, on the same day was crisp and short and the one committed to memory. whereas everett, you know, i don't know, 2 hours speech or

whatever it was, is long been forgotten, but he did the right thing. i believe in not that that was a gubernatorial election. that was, believe it or not, settled by one vote. i mean, talk about every vote matters. one vote matters. and he did he did the right thing by saying, look, i think if you if you count the votes honestly didn't win. and so i'm not going to really fight for it. so to see is to see an incumbent politician, you know, wanted to hold power, started trying to dispute it and said no, no, no, i'm backing off. i'll let the truth prevail i think it's a nice episode and was really kind of funny about it is he could have won the election if only his brother had voted for him. but his brother voted for the opposing candidate. and then and then even funnier if that's not funny to his own. secretary of state was part of his party didn't bother to vote that day because was out on the hustings trying to to you know

run the election or whatever he was doing and so he he could have won either as his brother had voted for him or if his own secretary of state had voted him. but maybe that was an omen that he wasn't going to win another term. therefore, thank you for joining us in the voting booth. thanks for having me. now, we're not, as you know or we're not ending this event here. this is the first part, the podcast, which you'll hear in a few days where you find your podcasts you can listen to. but we have both of live visitors with the air stream and to remind you some of the questions that that could come in, if you wanted to ask a question through the, it would be one to email john lee j a e h you kn dot lee at e talk or to use hashtag a voting booth on twitter x. so we're looking for your questions. we're looking also for questions of the room and then the other thing i'm going to remind you is that ned has been generous and will be able to find some of his

books after this for, those people in the room. so i'm going to look for some questions. i might also have some questions online and we'll go right. and just one thing is, if we could wait the mic and then identify yourself and of course, as they say, always ask a question. not a lot of statements. all right. in the blue shirt. it's excuse me. thank you for being here. my name is colin, an intern here at aei this summer. i'm curious, these 21st century sort of election have been very public, you know, national discourse, the media. i'm curious if prior disputes, you know, going back to 1792, have have the national discourse in the same way or if these battles were taking place behind closed doors and sort of in courtrooms and in congress. yeah, that great great question. i think they were mean the media environment was obviously so

different. no twitter, no social media. and so forth, but the newspapers were full of coverage of this on on a regular basis. and the press was very partizan at the time. so in some ways i think it's encouraging in that, you know, we worry about media silo as a nation and the fact that, you know, there's fox and msnbc and that sort of thing what that was happening in the 1790s also madison and jefferson were using their press outlets to advance their position and the federalist had theirs as well. and both sides were writing extensive play about what was going on. everybody that was was so interesting to me was that this new governor's election wasn't just covered in new york. the james monroe madison jefferson, other prominent virginia people, like rand edmund randolph, they were all over this.

and because they knew it was an important event for the country as a whole gary tuchman biked. gary schmitt, i'm senior fellow here at aei. and despite that title, i don't. remember 1876. so i wanted to go back by the way, the other little comment is it's and it's unusual for a law professor to be able write such great narrative. so congratulations, i want to go back to the kent quote that you that you mentioned in pretty early on about needing to biased entities to resolve something and you mentioned that he just didn't have the vocabulary for something long a neutral you know institutional line. i'm reminded that when hamilton set the sinking fund, he created basically kind of a neutral set

of, folks who could manage who could manage sinking fund in such a way as that partizan viewpoints were taken into account. but also just to give the legitimacy to whatever activity they did and in terms of the sinking fund. so that gets me back to the kent quote. i'm wondering whether kent actually knew that had the vocabulary, but was more inclined to think that this was one of those issues where it's really not possible, finally have a neutral arbiter. in other words, he's not saying he's not pointing towards neutrality. he's is actually reflecting the fact that these kinds of judgments ultimately come down to be political and political abroad sense and political in high political in the low sense, but nevertheless, you know, it's a judgment, not something scientific, as you would expect from a fact finding effort.

yeah, i think that's a fair and important question. i guess i would interpret it. i mean, hamilton himself clearly believed that the proper way to handle these things was political. i mean, he john jay was willing to really go to the mat on this. and by going in that way, again, there was a sort of malicious forming in like they thought, i mean, they knew how to do revolution right. and so they thought about going into constitutional in the state of new york to repudiate what the law resolution of the dispute would be against them by saying, we're going to take matters into our own hands. the level of popular sovereignty and hamilton said, no, no, no, no, no, no. that's very dangerous. you know, if we if our side does that the other side could do that down the road, you're playing with fire. the better thing. and you wrote a to john to say

just graciously defeat even though you were and you thought and just run for reelection the next time and and beat your opponent the next time. that's what happened. so, jay, ultimately said, i'm not going to fight this. and he did. he did win the election. and so that and that view has existed throughout american history. that was sort of the approach that richard nixon took, i think, in 1960, when he had a plausible claim that he had been robbed in. illinois and texas did very debatable, but there was some plausibility to that, more so than i had imagined before writing the book. the other view, which actually was madison's view in various disputes. he was involved in this. no, no, no. as a we need to there is a legal answer to this we're used to courts can handle evidence versus of evidence and so we want the the right answer. and my reading of kant is he's more even though. he was in the opposite political party of madison he was more in that mindset. he wanted the rule of law to

answer and he didn't want political partizanship to to do so. and i don't know why he said what he said, the way that he said it. it is true that struggled in this respect in. the hayes tilden example was where an attempt to create a neutral tribunal didn't. but there are episodes discussed in book where the neutral institution did work. minnesota again has done this quite successfully twice where modeled on labor management arbitration. they create a three member tribunal where one side has one represented. if the other side has the and they're representative and the two of them pick some third represent native as a as a in case you need a tiebreaker in minnesota use that in 1962 for a gubernatorial election and they did a version of that for the franken coleman election. and both times those three judge panels ended up being unanimous because they were sort of

wanting to be on good behavior. they're not together before. they wanted to do the right thing. and that did create air of legitimacy. oh, well, if all three judges, two from each side and one neutral, all as to what the facts are and what the law requires was that's sort of the best way to handle. so claiborne powell, senator pell recommended for a disputed senate seat the 1970s that creating that look into arbitration as a as a model so there's been some attempt in american history to try to do this ken just didn't flesh out back in the beginning up here. i really elmont and i was wondering if thought that you know once the 2024 presidential election has happened if you think that something like 2020 what happened 2020 after

election could happen again either way that the election goes i do unfortunately i mean again i think good news with this electoral count reform means that that some of what happened in 2020 just can't repeat itself. so that's important. the thing and again, i don't want to envision horrible things that happen that hopefully won't happen. but but the most important thing, i think, to say about. 2020 in relationship, 2024 is the human virtue piece of this in that the following sense, let's assume there, is contestation this november and december over counting votes in battleground states. and both sides think they've won some some states like, you know, could be like florida 2000 or 1876 or or 1960 or whatever.

and so under the legal regime that we now have in place that's supposed be handled primarily in state pursuant to state law, if there are genuine federal, it goes to federal court. and the new statute says whatever the courts decide should is congress has promised to accept the judicial resolution of these fights. so should work well, congress follows its own but their prior isn't any mechanism in american to force congress to to its own pledge. so we have to trust that of congress are ultimately to follow their own rules. so i want to presume they will, but that's contingent their behavior. we have a question here, and that's probably going to be the last question before now. sorry, the that gentleman had a

hand for a while to go here and then we'll or we'll do two purposes. yeah, sure. jp hogan. 2020 did you study with the early vote? you mentioned the covid rules. they allowed early voting. did you study of trump if most of the election had been decided and voted on election, would trump have won because it seemed the democrats got their votes in before he did most of his spending to correct the lying they were doing. so did with the ballots. did you make determination on election day versus earlier when the democrats were using their machine to get the early votes in before he spent against what they were running against him? yes. i think if i understood the question, i think i'll say two things that about that. first of all, i think you can look at a lot of elections in american history where if the rules for running election in advance had been different, the might have might have been

different. i mean, the the elections where we've a a disconnect between the so-called national popular vote versus the electoral college is a clear example. the two different kinds of rules produced two different results in the outcome. as a lawyer, i strongly you you have to play the game according to the rules of the game set up in advance so i might not be a fan of the electoral but if it's our system that's our legitimate system and. you can't complain that you would have won if the rules had been something different. so. so i guess that that's one point. if, if the question is specifically about the changing dynamic of vote counting that it definitely. in 2020, that's something i've written a lot, not just for this book in some of my other scholarship, but definitely talk about it in the new here because of some the rules that are adopted in the help america vote. but but more particularly

because of the rise of so-called no excuse absentee voting. i mean, prior to the 21st century, we used absentee voting very rarely as a percentage of ballots for people who were away on business or were hospitalized or what have you. and you had to have an excuse but starting in in some of the western states they expanded that and and what i started to observe. in 2012 was that expanding this opportunity of a new more convenient way to vote was causing what i called the blue shift in an electoral turns that what would happen that election night totals as reported by the media would tend to be more favorable republican candidates. but that as valid votes be counted during canvasing period they would tend to shift more

favorably to democrats. and you could see this 2008 could see this in 2012. and this is a was a new phenomenon of the 21st century. as a result, changing the voting rules were still valid votes. they were all valid votes, but they were counted be counted later on. and it was partly because as we learned in 2020 states like pennsylvania and at the time michigan that expanded their use of absentee ballot and didn't change their counting rules. other states like florida, maybe virginia ohio, certainly were able to modernize their counting of absentee ballots as they expanded to no excuse. absentee ballots. so what happened in in 2020 was and this was predictable, i explained that this was likely happen in a in a law review article that i wrote in 2019. was that on election night, trump was likely to be ahead in

a number of these states. it was also called the red by the media. if you remember that term, but that those leads would would disappear as a additional valid votes were counted and based on trump's own reaction to a blue shift that occurred in florida elections and in 2018, this was when governor desantis won his governor's seat the first time. and senator rick scott won his senate seat. this blue shift was happening in a way that was very predictable to me. having done the work that i'd done back in 2012 and and research was a very nerve racking phenomenon. the media and to politicians who for whom this was a new thing. and trump was exploiting this on twitter and saying only count votes that were were counted on election night, stop counting votes. this is not something that can happen under the law. these are votes.

and i was very worried that he would replicate that same response with respect to his own election in 2020. and, in fact, he did and set in motion the contestation that lasted from election night all the way up through through six. one last question. as part of our formal programing i know some of you have hand so ned will be here signing books so maybe we'll get talk about those other questions then but the is yours so much my name is dr. merle alexander, currently a congressional candidate for washington, d.c. so as we look at the history and i'm finding this performed quite fascinate. looking at the 21st century and from 2020 to now with covid and the ballot box and with the recent of the safeguard america voter eligibility, what can you say about what we should anticipate for this 2024 election when it comes to ineligible voters.

the historical record is that we've had know very few voters voting in in american elections. the percentages are very very small not nonexistent almost always not affecting the outcome. i think the most interesting and relevant election to for modern purposes is an election in washington state for their governor and in 2004. and that was an election where the two candidates were separated about 120, 127 vote margin statewide. so very, very tight. and it turned out through litigation were about 1000 ballots that were genuinely disputed and actually shouldn't have been counted were counted. and once you count ballot, you can't uncounted. and so it's mixed in the part.

but they were able to identify through the litigation. what why those invalid ballots were counted only a handful were were so-called voters. and obviously anybody who's deceased can't cast a vote but some vote votes were cast on behalf of of deceased individual. but again, i think that number was less than ten. if remember, certainly less than 20. i recall any noncitizen voting in that election as a as a as a source of invalid votes. the largest segment of invalid votes were so-called felon. these were in who were disenfranchized by virtue of law that that is felon disenfranchize easement and yet had been to register. there wasn't any fraud or even of fraud. it was just sort of mistake. people didn't realize that they

had lost privileges and sloppy rolls and what have you. and so had former who were listed as registered voters who cast ballots where weren't eligible. that was the biggest and the second biggest segment were ballots that were ended up being counted by local election administrators. but according to the valid rules shouldn't have been counted. those in the hundreds or so. so that's the most consequential election in recent american history where you could say in eligible ballots were, outcome determinative, otherwise it's virtually nonexistent. ned foley, thank you for writing this book and this new edition, which again, i hope everyone will purchase for their loved ones for themselves. thank you for joining us today. thank you for all your.