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Amid Pressures To Overturn Election, Electoral College Under New Scrutiny


Tomorrow, a ritual almost as old as the United States itself will play out across the country. The electors who together form the Electoral College will meet in each state and the District of Columbia to officially cast their votes for president and vice president. Electors are expected to vote in accordance with the way the people of their respective states voted in the presidential election and reflect President-elect Joe Biden's win in November.

In most years, most Americans don't take note of this ritual, but this has been no ordinary year. President Trump continues to make baseless claims of election fraud, and more than 100 Republican lawmakers, who are themselves elected by the people, have supported efforts to overturn election results. So we thought it would be important to take note of the Electoral College and how it works and why this moment is so significant.

For this, we've called Ned Foley. He is the Ebersold chair in constitutional law at The Ohio State University and director of the election law program there.

Professor Foley, welcome. Thank you so much for joining us.

EDWARD FOLEY: Well, good to be with you. Thank you.

MARTIN: So the election results in each state have been officially certified, and they say that Joe Biden won the election by 306 electoral votes to Donald Trump's 232. So what do you expect to happen tomorrow when the Electoral College meets? Will that result be reflected by the electors?

FOLEY: Yes, I think so. I think tomorrow's meeting will confirm what we've known now for a while. There's always a chance of a tiny hiccup or a little bit of theater involved. But as a matter of law and formality, it will confirm the result of the election.

MARTIN: And then what happens? That's not quite the end of it. What happens after that?

FOLEY: Well, Congress has to receive the electoral votes from all the states and count them and confirm the result. That happens on January 6. And that's also required by the Constitution.

MARTIN: So let's go back to kind of the current moment. And as I think most people know, the president has been claiming, without any basis, that the election was stolen from him. And he has continued to insist upon this to his supporters. He's been supported in this by many people in the conservative media. We see that there have been demonstrations all over the country, including a very kind of raucous and at times violent one here in the nation's capital, you know, last night. Is this putting electors under increased pressure to go against the way the people in their states voted? Do you think it's having any effect?

FOLEY: Well, I mean, it is a concerning development in our democracy. I mean, it is essential for democracy to work that the team that loses accept defeat. You know, each time, there's going to be a winner and a loser. And the concept is taking turns, right? We hold elections for president every four years. Sometimes one side wins, sometimes the other side. And this year, there's been this especially unfortunate development that the losing side can't seem to accept defeat.

I don't think that's going to have a practical effect, again, on the legal and official result, you know, at the meeting on Monday, tomorrow. But I think it could cause there to be some demonstrations, perhaps, in some of the state capitals or some commotion as part of the process. And it may make, you know, just the process of actually casting the votes a little bit more fraught than it should be.

MARTIN: And the president has sought other avenues to support his, as we said, baseless claim. On Friday, the Supreme Court rejected a lawsuit which was brought by Texas that sought to overturn election results in key states won by Joe Biden - Michigan, Wisconsin, Pennsylvania and Georgia. But the effort had the support of 17 Republican state attorneys general and more than 100 Republican lawmakers on Capitol Hill.

And it's just been really interesting to see - I think it's no longer a surprise that there's a lot of division in our society at the moment. But it's almost as if this is being discussed in two completely different universes. You know, a lot of people in the mainstream media and in opinion journals are talking about this whole thing as being shocking, you know, outrageous, shameful that they would support such a thing. In other spheres, it's just been discussed as kind of, well, you know, the president has a right to sort of pursue all his sort of legal avenues.

What's your take on this? And are you talking about this with others of your colleagues in the constitutional law realm? What is your take on this, the fact that this happened and the fact that they're continuing to pursue this in this way?

FOLEY: So I guess I'd like to make a short-term point and then maybe a longer-term point. You know, the short term is tomorrow is a pivotal moment. Again, it may be a formality, but it's an important one because the Constitution does give the Electoral College, you know, the power to be officially the body that does the election. Maybe that's a transitional moment where we can finally say it's over, this election, and accept it - you know, both parties, all sides - and say, you know, we have a result, and let's respect the result. You know, if that's what happens tomorrow, it will have been, you know, a bumpy roller coaster ride to get there, but it won't have derailed. And we can, you know, say we're done and move on.

Longer term, I think, some soul-searching has to be done to say, well, why was it so hard to accept the results of an election? What was surprising to me and to my other colleagues - because we do talk about this - is this was not like Florida 2000, where there was a really close result that was genuinely contestable. This was an effort to manufacture a contest when the evidence didn't support it. You know, what's been so striking about President Trump's claim and the fact that they've gotten support from others is that they are baseless. You know, it's conspiracy theory. It's not rooted in reality. And that's what's particularly shocking and distressing.

MARTIN: But I guess I'm wondering, how do you get to a point where you have a group of Americans from one state who want to invalidate the votes of millions of fellow citizens from other states because they don't agree with them? And the question then becomes, how do we go forward? Do you have some thoughts about that?

FOLEY: Yeah, I wish I had an easy answer. I don't. And I think it's partly because I do think we're at a moment in American history that is different from before, at least from my research and scholarship and studying it. I think we're seeing a combination of two things that have - each has existed in the past but never in combination. So one is hyperpartisanship and polarization. You know, that's happened in the Gilded Age. You know, that happened in 1800, Jefferson versus Adams. You know - and so we know we have that. We've also had in the McCarthyism period of the Red Scare, for example, these fabrications of political rhetoric and a kind of demagogue like McCarthy saying - with his list of communists that didn't exist. And yet, it resonated in the public, and Congress had struggled for years sort of getting over McCarthyism [see POST-BROADCAST CORRECTION below].

We've never had McCarthyism-like denial of reality and fabrication of an alternative reality applied to the voting process and to election results, at least to my knowledge. And so that is kind of a unique stress on our system that we're going to have to figure out how we undo.

MARTIN: That was Ned Foley, Ebersold chair in constitutional law at The Ohio State University and director of the election law program there. His latest book is called "Presidential Elections And Majority Rule."

Professor Foley, thank you for talking with us.

FOLEY: Thanks very much for having me.

[POST-BROADCAST CORRECTION: In an earlier broadcast version of this story, Edward Foley can be heard referring to Eugene McCarthy when he meant Joseph McCarthy.]

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.