Dear Editor,
Edward B. Foley’s article, “Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management” was published almost a year and a half ago, on August 31, 2019 (51 Loy. U. Chi. L. J. 309). It may have inspired the strategy and narratives of the Democrats to a considerable degree in the 2020 presidential election, an election that was called for V.P. Biden by the Associated Press and the US media in general, but an election that is still ongoing and bitterly contested.
This “Exercise in Election Risk Assessment and Management” is a day-by-day narrated account along with much scholarly legal commentary of events of the crisis, the imbroglio following the night of the election. The article/scenario is much too long to summarize here, but (in 2019) the author theorized that on election night (2020) Republicans would appear to be the winners until later on in the count (he didn’t say how much later) when mail-in votes would favor Democrats.
Professor of Law at Ohio State University Edward Foley studied literature at Yale and Law at Columbia before clerking for two Democrat judges. He is a staunch Democrat who believes that President Trump is a dishonest and dangerous individual to say the least: a President who, as represented in this scenario, seeks to remain in office even though he fairly loses the 2020 presidential election. The author/screenwriter also presumed that there was a shift in the allegiance of voters taking place from Republican to Democrat, specifically in the so-called “battleground” and “swing states,” that he assumed would be disputed during the presidential election of 2020.
In the conclusion of his scenario/exercise, Prof. Foley writes: “The key premise of this article is that it would not take an extraordinary calamity, like a foreign cyberattack, for there to be conditions enabling partisans to dispute the result. Instead, a dispute engulfing Congress could arise from a situation as routine as the kind of ‘blue shift’ described at the outset.” That is to say a situation that involves an overwhelming number of mail-in ballots that are counted “later,” following the night of the election. Interestingly, he does not refer to the election being called for anyone during the night.
There is no other mention of the media except for the author explaining that the Associated Press (AP) and other media are reluctant to call the election for Senator Warren because there was a miscalling of an election in the past and Trump had ridiculed the media for doing so. We know, now (of course) that Fox News – the only News outlet where there was some support for the Republicans – was the first to call the state of Arizona for V.P. Biden. CNN and the others refrained from following Fox News in calling Arizona for V.P. Biden until long after Fox News had done so. Did Prof. Foley’s published scenario play any role in influencing Fox’s truly strange, unexpected calling of the state of Arizona for V.P. Biden when it did?
The real (2020) ongoing election imbroglio appears to be a combination of the professor’s so-called “routine situation” and of the “extraordinary calamity” he refers to as a “cyberattack.” Indeed, President Trump and a number of other Republicans are alleging that there were cyber intrusion and interference in the voting process.
To examine Prof. Foley’s scenario, a day-to-day accounting of events ending with the inauguration of Senator Warren as President on January 20, 2021, is to grasp the abysmal chasm that divides Democrats such as Prof. Foley and his partisans from Republicans such as President Trump and most of his supporters. To study this screenplay, published more than a year before the 2020 election, is to gauge the almost impossible prospect of reconciliation and bipartisanship that is required in order to pull that nation back from the edge of the dismal precipice on which it stands.
The enmity of this learned man of letters and of the Law towards the President of his country is almost impossible to fathom; it is not glaring in the scenario; it emanates from the assumptions and presumptions of the author. While it is instructive in many ways, it can also muck up the mind of uncritical, uninformed readers. Hopefully, the professor does not inject his blindness and his stealthy-soft-sweet poison into the minds of his students. But judging from some of his tweets (no longer accessible online) Prof. Foley’s folly is ongoing: he does not appear to have learned much since he wrote this article.
The author’s mistrust of his President may account for much of the blindness of his insight and the shakiness of his premises in this scenario-article that may have inspired the strategies and narratives of many of his fellow partisan Democrats at the highest level of his party. The premises of his scenario are fallacious; they are faulty: there has been no noted movement of voter allegiance from Republican to Democrat in the US during the Trump presidency to date. To the contrary, the movement has been in the other direction: from Democrat to Republican, witness all of the gains of Republicans in the 2020 election thus far.
Prof. Foley’s uses the term “blue shift” to designate the relatively new phenomenon of an increase in mail-in ballots and their counting; this term obfuscates; it muddles the waters and may have served to (intentionally) confuse the issues while advancing a strategy, a road map in the form of a scenario that may have assisted his fellow Democrats in their efforts, their strategy to flood, choke and overwhelm the counting system (Cloward-Piven strategy) in order to defeat the Republicans. At this juncture, it seems that the efforts of the Democrats are aimed at convincing enough Republican senators (enough RINOs) to join with them on January 6, 2021, to determine who will be inaugurated on January 20, 2021. But the few weeks that remain in this imbroglio is a long time; we shall see what transpires.
Prof. Foley explains that “it is truly irresponsible that Congress has not attempted to eliminate – in advance of the 2020 election – the ambiguities that plague the Electoral Count Act … .” That may well be the case, but unfortunately for Prof. Foley and (maybe) fortunately for President Trump, that Act is precisely the legal instrument that may allow for the scuttling of the ongoing imbroglio: a real and very dangerous impasse. In his article, Prof. Foley also represents Justice Stephen Bryer in step with the Democrats and with the position taken by “Acting President Nancy Pelosi” particularly (P. 346-348).
Cutting through the long narrative of representation and legal jargon in Prof. Foley’s scenario, it is obvious that the recent passing of the late Justice Ruth Bader Ginsberg and her replacement on the Court by the Trump-nominated and (now) Associate Justice Amy Coney Barrett are the events that throw a massive monkey wrench in the author’s plot where he presumes and writes of Chief Justice Roberts “not wanting to involve the Supreme Court” in the matter (P. 347).
Indeed, now, it does not matter if Chief Justice Roberts wishes to involve the Supreme Court in this very real and grave constitutional matter. If the other Conservative Justices on the Court decide to hear the case, hopefully with Justice Clarence Thomas in the lead, Chief Justice Roberts will have no choice; he will have to get involved. And, hopefully, it will not matter how he votes. But chances are he may soon have to agree with President Trump and concede that judges are not apolitical.
In the vast forest that is our life, a great old and exceptional tree of liberty is being cut down by a confederacy of dunces, plutocrats and crooks. Instead of decrying its destruction, its spoliation; instead of rallying for its protection; for its preservation; the fourth estate in the USA is either silent or cheering on its demise; encouraging the spoliators: the vile agents of its destruction. How unfortunate!
Gérard M. Hunt
