OSU Prof predicted the Big Lie & has a solution: Amend the Electoral Count Act

Ohio State University Professor Edward B. “Ned” Foley predicted with stunning accuracy that Donald Trump would lie about his election loss in Pennsylvania or Arizona. These ended up being the 2 States whose votes were denied by 147 members of Congress (including 5 from Ohio), all because of Trump’s lies.

Foley’s prediction is from 2019, a year before the tumultuous election which culminated on January 6th. He suggested a fix which might have avoided the Capitol attack: change the law that allows Congress to cherrypick Presidential votes. We should have taken his suggestion back then. It’s time to heed his advice and fix the Electoral Count Act.

Foley’s predictions

In his 2019 article, Preparing for a Disputed Presidential Election, Foley predicted that Trump would have a temporary lead in Pennsylvania on election night, but when all the votes were counted he would lose. In reality, Trump was ahead by 700k votes in PA that night when millions of votes were still waiting to be counted, and ultimately Biden secured a decisive victory with a 80k lead.

Prediction: On election night Trump will tweet, “The race is over. Another four years to keep Making America Great Again.”

Reality: At 12:45am Trump tweeted, “I will be making a statement tonight. A big WIN!” In his televised statement, he lied saying, “We were getting ready to win this election. Frankly, we did win this election. We did win this election.” Several states were too close to call the election yet.

Prediction: The next morning Trump will say, “I’ve won reelection. The results last night showed that I won Pennsylvania by over 20,000 votes. … I’m not going to let machine politicians in Philadelphia steal my reelection victory from me—or from my voters!”

Reality: At 12:49am Trump tweeted his conspiracy theory, “We are up BIG, but they are trying to STEAL the Election. We will never let them do it.” At noon he tweets, “They are working hard to make up 500,000 vote advantage in Pennsylvania disappear.” At 4:56pm, Trump boldly lies, tweeting, “We have claimed, for Electoral Vote purposes, the Commonwealth of Pennsylvania”, also falsely claiming Georgia and Michigan. These 3 States were still too close to call at the time and Biden ultimately won all 3.

Prediction: As votes continue being counted and Trump’s initial lead diminishes and is eventually overcome, he will tweet, “STOP THIS THEFT RIGHT NOW!!!” and “DON’T LET THEM STEAL THIS ELECTION FROM YOU!!!”

Reality: On 11/5 at 9:12am, Trump tweeted, “STOP THE COUNT!” At 12:21pm, “STOP THE FRAUD!” On 11/14, “Don’t let the Radical Left Dems STEAL THE ELECTION!”

Prediction: “Protestors take to the streets, in Pennsylvania and elsewhere.”

Reality: Protestors chant “Stop the Count” in Arizona, Michigan and other States, in some cases banging on the windows as election workers count legal votes. On 1/6, a mob broke into the US Capitol and temporarily stopped the electoral count.

How did he know?

The professor isn’t a psychic, but his hypothetical scenario was prophetic. “It is easy to imagine” said Foley, because he’s been studying US elections for many years. Back in 2013, Foley published a paper about the “blue shift“, the observation that Republicans tend to vote in-person and have their votes counted first, and Democrats are more likely to vote by mail or provisionally and have their votes counted later.

He also points to 2018 when Trump tweeted, “Must go with Election Night!” to declare fellow Republicans Rick Scott and Ron DeSantis winners before the votes were finished being counted.

What’s his solution?

In his 2019 paper and still to this day, Foley has a clear directive: “Congress should amend the relevant statute, 3 U.S.C. § 15.” That’s the federal law that describes the counting process for 1/6, the day that Trump again told his supporters “we must stop the steal” and sent waves of misguided and angry protestors toward the Capitol. This law is part of the Electoral Count Act, which has been widely criticized for being unclear and even unconstitutional. It suggests that Congress may overturn the election if they just get enough votes, which motivated rioters to bust through the windows with the false hope that their candidate could still win. If this law had been changed ahead of the election, then the insurrection might never have happened that day.

The election was effectively already over in early December, when all 50 states had conclusively certified their electors. The Constitution does not allow Congress to reject State certified election results, yet the Electoral Count Act lays out a process for doing just that. The ECA actually prohibits rejection of a single slate of electors if they’re “regularly given” and “lawfully certified”, and many legal experts agree that being State certified makes it regular and lawful. However, since it doesn’t clarify the definitions or conditions of these words, Congressmen Gosar, Cruz, Perry and Hawley were able to object to Arizona and Pennsylvania by simply writing that they were “not under all of the known circumstances regularly given”, and then voting to reject without any evidence, limitation or accountability.

As it stands right now, Congress can basically overturn an election for any reason whatsoever as long as they use the magic words “not regularly given” and have enough votes. In fact, a Congressman may vote to overturn an election while giving no specific reason at all, as is the case with Rep. Steve Chabot from Ohio. This situation is blatantly unconstitutional.

Professor Foley is right: the Electoral Count Act must be amended now. Although this won’t stop a President from lying, it could have avoided the attempted coup, and would better protect our democracy in the future.

Foley also recommends these federal election laws: (a) reasonable access to vote, (b) transparent and bipartisan counting, (c) anti-gerrymandering requirements, and (d) requiring Congressional candidates to win a majority of votes and not just more than other candidates.

Pence says ‘Trump is wrong’ to ask him to overturn election

Not only did members of Congress try to reject election results, Trump also pressured Vice President Mike Pence to steal the election for him. Trump’s lawyer John Eastman detailed steps for Pence to do just that, calling him the “ultimate arbiter” of the vote count, even though the Constitution says only that he “shall open all the certificates”. He also writes, “the main thing here is that Pence should do this without asking for permission.”

Eastman was one of the speakers who riled up the mob the morning of January 6th. Later that day, after the Capitol attack, he even explicitly asked Pence’s Chief Council Gregory Jacob to knowingly violate federal law, saying, “I implore you to consider one more relatively minor violation [of the Electoral Count Act] and adjourn for 10 days to allow legislatures to finish their investigations.” His inducement of illegal action was far from “minor”.

On 1/31/22, Trump criticized Electoral Count Act reform and admitted that his goal was for Pence to overturn the election, not just allow for more investigation. A few days later, Pence doubled down on his rejection of this scheme:

“Under Article II, Section 1, elections are conducted at the State level, not by the Congress. Congress can only open and count votes that were submitted and certified by the states. No more, no less. […] But there are those who believe as the presiding officer over the joint session of Congress, that I possessed unilateral authority to reject electoral college votes. I heard this week that President Trump said I had the right to overturn the election. President Trump is wrong. I had no right to overturn the election. The presidency belongs to the American people and the American people alone. There is no idea more un-American than the notion that any one person could choose the American president. Under the Constitution, I had no right to change the outcome of our election.”

Pence is right, he had no authority to reject the results as Trump desired. Amending the Electoral Count Act to make this perfectly clear will ensure this unconstitutional tactic is never attempted again.

Congressional interest in fixing the Electoral Count Act

In January 2022, Republican Senator minority leader Mitch McConnell has expressed willingness to amend the Electoral Count Act, as have Mitt Romney, Thom Tillis, Roger Wicker, John Thune, Liz Cheney and Susan Collins, in addition to Independent Angus King, and Democrats Zoe Lofgren, Joe Manchin, Kyrsten Sinema, Dick Durbin, Amy Klobuchar, Jeanne Shaheen, Ben Cardin and Chris Murphy.

Ohio Senator Rob Portman has also joined the initiative. Portman has upheld presidential election results against objections from both parties in 2005 and 2021.

On 1/24, over a dozen bipartisan Congress members held a Zoom call to discuss ECA changes. The group met again on 1/31. Meanwhile, the Committee on House Administration chaired by Zoe Lofgren issued a report on proposals for ECA reform.

2/1: Senators King, Klobuchar and Durbin released their draft bill of the Electoral Count Modernization Act.

2/18: Senator Susan Collins argued for reform in her op-ed: Our Democracy Shouldn’t Rest on a Rickety Law. She says, “relitigating bills that have already been rejected won’t get us to the finish line,” suggesting that Democrats’ desire to include other election reforms from the failed Freedom to Vote Act could prevent bipartisan buy-in.

I look forward to a progress on these bills in the coming weeks and hopefully support from Ohio’s members of Congress.

7/20/22: A bipartisan, expanded group of Senators, including Ohio’s Rob Portman, reached an agreement on reform, with a bill called the Electoral Count Reform and Presidential Transition Improvement Act. Professor Foley says, “This bill is well drafted, in my view, to prevent any kind of subversion of the true result of an election.” Later in November, Senator Sherrod Brown cosponsored it as well.

9/21/22: The House passed the Presidential Election Reform Act bill introduced by Rep. Zoe Lofgren. Rep Anthony Gonzalez was the only Ohio Republican to approve the bill. Reps. Tim Ryan, Joyce Beatty, Marcy Kaptur and Shontel Brown also voted for it. Read more about it here.

9/29/22: McConnell, Schumer back bill to prevent efforts to subvert presidential election results

12/13/22: The year is winding down and Republicans are set to take the House majority in 3 weeks. Will Congress be able to amend the ECA or not? Reps Lofgren and Cheney raised concerns about the Senate bill not defining “regularly given” nor “lawfully certified”, and also about court jurisdiction. Nonetheless, Senator Schumer is optimistic that they can get ECA reform into the omnibus spending bill.

Reform is now the law!

Just before the year’s end, on 12/29/22 President Biden signed the omnibus bill into law which includes the Electoral Count Reform and Presidential Transition Improvement Act! It limits the Vice President’s powers to ministerial only, raises the threshold for objections to 1/5th of each chamber of Congress instead of 1 member of each, among other changes.

This is a victory for our democracy, to help protect it against another coup attempt like Trump’s. It’s not a foolproof, silver-bullet solution, so we still need to work to safeguard our republic, but today we celebrate this historic win. Congratulations to the Senators who negotiated this bill to bring it across the finish line!

Further Reading

Follow Professor Edward “Ned” Foley on Twitter

Foley’s articles for the Washington Post

Rick Hasen’s Election Law Blog with contributions from Professor Foley

A Big Blue Shift: Measuring an Asymmetrically Increasing Margin of Litigation

Should we amend or abolish the Electoral Count Act? – American Enterprise Institute

How Congress can fix the Electoral Count Act – Ned Foley

5 Ohio Congressmen’s Rejection of Election Results was Unconstitutional

In the news

1/16/22: Electoral act reform picks up growing bipartisan support – Axios
1/21/22: What Democrats Need From McConnell to Make an Election Reform Deal Worth It – Rick Hasen
1/21/22: The Electoral Count Act and the next steps on voting rights – CBS
1/26/22: Fixing the ECA Is Suddenly the Most Popular Policy Idea in Washington – NewRepublic
1/27/22: Schumer gives Senate’s newest bipartisan gang breathing room on post-Jan. 6 reform – Politico
2/6/22: Manchin and Murkowski signal optimism on Electoral Count Act reform – CNN
4/29/22: Lawmakers see ‘rapidly closing window’ to reform – Boston Globe
New Hampshire Senator Shaheen was “encouraged by the progress” of a 4/26 bipartisan meeting.
5/12/22: Why the Bipartisan Push to Prevent Another Jan. 6 Is Running Out of Time – Time Magazine
Legislation could be introduced this summer.
7/20/22: A bipartisan Senate group announces a deal on reforming the Electoral Count Act – NPR
7/21/22: About the deal to reform the Electoral Count Act, with Ned Foley – WBUR Here & Now