MSU Law Hosts Post-Election Conversation With Constitutional Law Faculty


More than 100 Michigan State University College of Law alumni joined a Zoom webinar on Wednesday, November 18, to participate in what Interim Dean (and panel moderator) Melanie B. Jacobs characterized as a “robust, non-partisan discussion” of the complex and unorthodox 2020 election. The conversation was shaped by the dozens of questions submitted by alumni in advance and in the webinar’s live chat, making the discussion uniquely responsive to the concerns of lawyers, and it was co-sponsored by the Washington, DC, branch of the MSU Law Alumni Association.

A trio of MSU Law constitutional scholars led the discussion: Professor Brian Kalt, an expert on the constitutional laws surrounding selecting and governing presidents; Professor Michael Lawrence, an expert on constitutional law and racial justice; and Professor Philip Pucillo, an expert on constitutional litigation and professional responsibility.

This one-of-a-kind event applied a sharp-eyed legal perspective to the November 3rd election that, in the words of Dean Jacobs, “seems a bit like yesterday, and also seems like a year ago.”


Professor Pucillo started the conversation by providing context for the federal constitutional claims raised by the Trump campaign in Pennsylvania, Nevada, and Georgia that have the potential to rise to the Supreme Court. He described the claims as falling into two main categories:

  • Claims Under Article II, Section 1, where the Trump campaign argues that the state (through administrative guidance) has departed significantly from the norms enacted and prescribed by the state legislature; and
  • Equal Protection Claims, where the Trump campaign argues that the standards for accepting or rejecting a ballot cannot vary within the same state (across counties).

If successful, those claims could cause the popular vote in those states to be audited, recounted, or disregarded altogether, although Professor Pucillo pointed out that any remedy would be “tough to speculate on” as “the [Trump] campaign doesn’t really know what to ask for, and I don’t think the courts understand what they can grant, in terms of relief.” In the case of Pennsylvania, for example, Professor Pucillo expressed doubt that President Trump could make up his current vote deficit through any remedy effectuated by federal courts.

Like Professor Pucillo, Professor Kalt pointed out that, given the vote margin, any remedy would be unlikely to cure the injury. He expressed doubt that the alleged Equal Protection violations would significantly improve President Trump’s position in key states like Pennsylvania.

“If you think of that remedially,” he observed, “one way to treat them the same is to let the people whose votes didn’t count, count: count more votes instead of throwing votes out. […] All other things being equal, we would prefer that as a remedy.”


“There’s a big disconnect between what President Trump has been tweeting,” Professor Kalt noted, “and what his lawyers have been arguing in court. President Trump has not been tweeting a lot about Equal Protection violations (he has, but a little bit): he’s mostly been talking about fraud. And that’s not what’s being litigated in court.”

Professor Lawrence observed that the assertions of fraud on social media are likely to fall apart upon close legal scrutiny – or never make it to the courtroom at all.

“The problem is, for those claims and sort of tweets and whatnot, is that once you get into a court of law, there are rules of evidence,” he said. “A tweet is not a very good piece of evidence. And once subjected to evidentiary rules and so forth, we see that the claims don’t hold up.”


The wide-ranging conversation touched on myriad 2020 political topics, including:

  • The potential for state legislatures to exercise unilateral power with selecting their electors (characterized by Professor Pucillo as “an act of political suicide”);
  • The usually routine certification of the winner and totals of county voting results by canvassing boards, which has taken on a partisan bent in the current election;
  • The arguments regarding GOP poll watchers and their allegations that they had inadequate access to the process;
  • The thus-far unsubstantiated claims that foreign agents have taken control of software in American voting machines;
  • The possibility that Rule 11 sanctions could be imposed as consequences for lawyers who argue “frivolous” cases;
  • Whether or not President Trump ultimately has a path to retaining the presidency for a second term;
  • The past and future of the Electoral College and whether electoral reform is likely; and
  • The American tradition of an orderly transition of power and whether that’s likely to occur following the 2020 election.


Professor Kalt thinks that ultimately, the 2020 election will inspire legislators to expand the legal framework around presidential elections. “I think it’s interesting to consider what this shows us about how much of what we’ve always sort of got used to or imagined as being a matter of law was actually always just a matter of norms,” he noted. He offered the presidential transition as an example: “We see what the [vote] numbers are, and we proceed accordingly, and that’s a norm. And the law rest on that norm, right? Ascertainment rests on that norm.”

As Professor Pucillo enthusiastically unpacked high-stakes legal scenarios, he repeatedly reminded his audience that the hypotheticals weren’t intended to give the attendees heart attacks or uncontrollable anxiety; instead, they were meant to apply legal expertise to today’s political questions.

Toward the end of the 90-minute conversation, Professor Lawrence expressed optimism in his closing remarks:

“As a Constitutional Law professor and scholar, I believe in the strength of the Constitution to allow us to weather difficult times. […] The Constitution has allowed us to pull through and a large part of that success is the independent judiciary. […] I’m confident that we will come through this. We have a lot of work to do, but I’m confident that we’ll come through this in fine shape.”