Did our election system work as it should in picking the next president of the United States?

With only one major date left on the calendar — Jan. 6 when Congress will receive the state’s electoral college results — it’s fair to now ask that question.

The Robert H. Jackson Center hosted a webinar with Edward Foley, the department chair in Constitutional Law at the Ohio State University, who has recently written extensively on the electoral college, prior to the election.

They had him back this week for a post-mortem on how the election — and the electoral college — functioned in 2020.

“If we didn’t have the dispute over the outcome,” Foley said, “frankly a dispute that has not been justified (and) is troubling for the body politic going forward” we would be “heralding this a remarkable success.”

He said election day went “much better than I thought it would” — concerns about violence, extremely long lines, power outages — didn’t come to fruition.

“Turnout was remarkable,” he added, calling it a “pleasant surprise” that so many Americans wanted to “exercise the civic responsibility of participatory democracy and have their voices heard in record numbers.”

However, he expressed concern that those successes have been clouded by a dispute of the results from President Trump, who he said has tried to “perpetuate the mistrust.”

“The distrust of the voting technology,” he added, “was something I did not anticipate to be honest.”

He highlighted two kinds of attacks from the White House — “somehow the election night count is the only valid count” and something wrong with the machines corrupted the outcome.

Foley said the president’s claims that he has one based on allegations of fraud that are a “denial of reality” and added that the lawsuits filed by the president have “not been meritorious” and are an “abuse of the litigation process.”

Monday marked a key day in the electoral college process — each state gathered to formally cast its electoral votes.

While the respective state houses are ultimately responsible to select the electors, the president has attempted to convince Republican-led state houses to consider different delegates.

“The legislature didn’t do this,” Foley said. “On Monday, there was only one official set of electors from each state.”

He explained that an act of Congress potentially gives states the authority to do that if there’s a failure in a state’s electoral process.

“(You) cannot asset this concept of failure just because we don’t like the result,” he said. “(There are) grounds to be concerned in that this was not a close election in some sense,” citing the final electoral totals and state vote margins. “Where I think there’s a greater risk of abuse of this process might be next time, let’s say, if it does come down to a single state… and the margin in that one state is more like 5,000 votes. Then will a candidate that doesn’t want to admit defeat, would they have more leverage?”

The next key day in the process is Jan. 6, when Congress will formally accept the electoral votes from the states.

There’s scuttlebutt that alternate slates of electors other than the one’s certified by the states — might be presented to Congress.

“It’s the first time anything like this has happened in the modern era,” Foley said. “I think these alternative submissions if they occur are going to be dead on arrival when they reach Congress.”

That’s because, he said, none of the alternates would have had official status from the states on the date when all the states were required to cast their electoral votes.

Foley said there’s one counterexample — Hawaii in 1960. In that scenario, John Kennedy’s electors met because they thought they would prevail. The state’s electoral votes didn’t sway the results and then-Vice President Richard Nixon — who knew he had lost the election — called on counting the Kennedy electors which was “definitely the unconstitutional result.

Even if there are alternate delegates presented to Congress next month, Foley said Congress doesn’t have the power to change the outcome.

“Congress’ only role,” he said, is to answer one question — “Are the electoral votes we received the ones sent by the state? Congress is not supposed to go… behind the returns and ask ‘Was their fraud in Georgia?’ That’s for Georgia to decide.”

While the Electoral College — in this instance — selected the candidate who received the most votes, that isn’t always the case.

And Foley does think the institution has outlived its usefulness, though he acknowledged changing the system is a “herculean effort.”

He advocated for the national popular vote model and said the “cleanest, simplest way” to bring that about is a Constitutional amendment saying so, with all of the other details fleshed out by Congress.

The National Popular Vote Interstate Compact is trying to accomplish the same thing, one state joining at a time.

“It can’t take effect until it reaches the magic number of 270,” he said, noting the effort is “still quite a ways short.”

“It only allows for a plurality winner, not a majority winner,” he added, noting the Supreme Court could declare it unconstitutional as inconsistent with the basis of the electoral college.

“I think we’ll see more effort along that road but I just don’t know if it will ultimately be successful,” he said.

So if we’re stuck with the electoral college, what can we do to update the counting process?

“I continue to believe the best practical reform is the adoption of what’s called ranked choice voting by states to appoint their own electors,” he said.

Foley said ranked choice “is trying to get at the same problem in a slightly different way.” He explained it this way — “Let’s give people a ballot where they can rank order their preferences.” A first tabulation can then “eliminate the candidate that is least preferred and reallocate the votes based on second choice preferences.”

He said it’s often called “instant runoff” because no second election is held.

“(It is a) good way to get to the true majority preference of the community in a three-way race.”

Has the dispute raised by the administration shaken confidence in the entire process?

“Yes, unfortunately and unjustifiably,” Foley said. “That is the serious concern…. A huge percentage of the Republican Party does not trust the outcome and it is not evidence-based.”

Congress on Jan. 6, he suggested, could start the process of healing those wounds.

“I have to hope that the way Congress conducts itself might be a moment to help in this regard,” he said.