The Electoral College: Here to stay?

Constitutional Law expert Sanford Levinson focused on the political implications of the Electoral College at Harvard Law School on October 21. He emphasized that the U.S. Electoral College system is unique among the election processes of major countries, which tend towards popular vote models, and he connected it to what he terms “the Constitution of settlement,” the structural provisions of the Constitution that are never litigated and therefore never discussed.

In response to recent criticism and praise of the Electoral College, Levinson highlighted its benefits and the ways in which it influences electoral outcomes, saying, “It is important to look at the way that any constitution rigs the electoral system, if you use rigging as a metaphor not necessarily for unfairness, but for establishing a basic structure, 'a rigging' if one thinks of an old-fashioned ship with masts. It makes a difference how many masts there are, and what sails are up and which are down. Rigging may quite literally be a matter of life and death. One is making choices when one constructs an electoral system, and there is no such thing as a perfect electoral system, any more than there is a perfect political society.”

To support his claim that the Electoral College shapes the outcomes of American presidential contests, Levinson cited the 1968 and 1992 elections, when candidates who garnered less than half of the popular vote reached the Oval Office on the strength of their electoral vote totals.

To support his claim that the Electoral College shapes the outcomes of American presidential contests, Levinson cited the 1968 and 1992 elections, when candidates who garnered less than half of the popular vote reached the Oval Office on the strength of their electoral vote totals. From his perspective, “The most important example in American history of this is 1860 and the election of Abraham Lincoln, who got to the Oval Office with 39.8 percent of the popular vote and a majority of the electoral vote, but his election triggered a war . . . through a fatal mixture of the issue of slavery, which might well have triggered a war sooner or later, but also the electoral system . . . that makes electoral votes and not popular votes key.”

Why, then, maintain a system whose historical justifications, according to Levinson, have long receded? He argued that the Electoral College remains intact because of its relationship to exceptionalism and constitutional structures: the “almost insurmountable hurdles to amendment” embedded in the document comprise another exceptional feature of the American Constitution. An amendment to modify the electoral system would require the approval of a supermajority of states. Small states and battleground states hold disproportionate importance under the Electoral College that a popular vote system would eliminate, and, Levinson explained, are therefore unlikely to support any move to reduce their power.

The Electoral College, a product of American exceptionalism and constitutional structures, continues to influence the outcome of national elections by establishing the rules of the game. Ultimately, Levinson said, under the Electoral College system, “it isn't voters who decide elections. It's electors who decide elections, and there is a mixed relationship between popular votes and electoral votes.”

Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School and is a visiting professor at HLS this semester. His talk was sponsored by Harvard Law School's Graduate Program.

The Electoral College: Good or Bad?

Constitutional Law expert Sanford Levinson focused on the political implications of the Electoral College at Harvard Law School on October 21. He emphasized that the U.S. Electoral College system is unique among the election processes of major countries, which tend towards popular vote models, and he connected it to what he terms “the Constitution of settlement,” the structural provisions of the Constitution that are never litigated and therefore never discussed.

In response to recent criticism and praise of the Electoral College, Levinson highlighted its benefits and the ways in which it influences electoral outcomes, saying, “It is important to look at the way that any constitution rigs the electoral system, if you use rigging as a metaphor not necessarily for unfairness, but for establishing a basic structure, 'a rigging' if one thinks of an old-fashioned ship with masts. It makes a difference how many masts there are, and what sails are up and which are down. Rigging may quite literally be a matter of life and death. One is making choices when one constructs an electoral system, and there is no such thing as a perfect electoral system, any more than there is a perfect political society.”

To support his claim that the Electoral College shapes the outcomes of American presidential contests, Levinson cited the 1968 and 1992 elections, when candidates who garnered less than half of the popular vote reached the Oval Office on the strength of their electoral vote totals.

To support his claim that the Electoral College shapes the outcomes of American presidential contests, Levinson cited the 1968 and 1992 elections, when candidates who garnered less than half of the popular vote reached the Oval Office on the strength of their electoral vote totals. From his perspective, “The most important example in American history of this is 1860 and the election of Abraham Lincoln, who got to the Oval Office with 39.8 percent of the popular vote and a majority of the electoral vote, but his election triggered a war . . . through a fatal mixture of the issue of slavery, which might well have triggered a war sooner or later, but also the electoral system . . . that makes electoral votes and not popular votes key.”

Why, then, maintain a system whose historical justifications, according to Levinson, have long receded? He argued that the Electoral College remains intact because of its relationship to exceptionalism and constitutional structures: the “almost insurmountable hurdles to amendment” embedded in the document comprise another exceptional feature of the American Constitution. An amendment to modify the electoral system would require the approval of a supermajority of states. Small states and battleground states hold disproportionate importance under the Electoral College that a popular vote system would eliminate, and, Levinson explained, are therefore unlikely to support any move to reduce their power.

The Electoral College, a product of American exceptionalism and constitutional structures, continues to influence the outcome of national elections by establishing the rules of the game. Ultimately, Levinson said, under the Electoral College system, “it isn't voters who decide elections. It's electors who decide elections, and there is a mixed relationship between popular votes and electoral votes.”

Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School and is a visiting professor at HLS this semester. His talk was sponsored by Harvard Law School's Graduate Program.

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Professor has Ed Portal audience vote on legalization of marijuana

Charles Nesson, spoke on: JuryX: Deliberations for Social Change, A Workshop in Active Citizenship I and II at the Education Portal at Harvard University
Rose Lincoln/Harvard Staff Photographer

It's been eight years since Massachusetts voters decriminalized the possession of one ounce or less of marijuana. On Tuesday, they'll decide whether to tax and regulate the sale and adult consumption of it.

The initiative, known as Question 4, would legalize and create a commission to regulate marijuana in Massachusetts. Under the new law, individuals at least 21 years old would be able to use marijuana, possess it, and grow up to six marijuana plants in their homes.

For Charles Nesson, Weld Professor of Law at Harvard Law School and co-founder of the Berkman Center for Internet and Society at Harvard University, the issue was the subject of an in-depth discussion at the Harvard Ed Portal in Allston.

Nesson's discussion Tuesday evening on the upcoming vote was part of the faculty lecture series at the Ed Portal, and drew strongly from Nesson's HarvardX course “JuryX: Deliberations for Social Change.”

Nesson began the discussion by showing three videos that highlighted very different points of view. First, he showed an interview clip from “60 Minutes” in which a Colorado pediatrician advocates for a ban of recreational pot due to rising numbers of babies born with marijuana in their system.

Next, Nesson showed a video created by the American Civil Liberties Union of Massachusetts (ACLUM), which supports the legalization of marijuana for racial and social justice. Those in the video argue that marijuana policing in Boston is racially biased, and that black people are three times more likely to be arrested for marijuana possession than white people.

Finally, Nesson showed part of an interview he conducted with Ras Iyah V, founder of the Westmoreland Hemp and Ganja Farmers Association in Jamaica. The organization advocates for ganja's economic development in Westmoreland, as well as protecting the traditional and cultural roots of ganja.

Iyah V is an elder of the Rastafari, an indigenous people of Jamaica. For Iyah V and others like him, Nesson said, marijuana is not a recreational drug, but “a sacrament for his culture … something that is not only regarded as safe, but centric and integral.”

Debra Poaster, of Allston, from left; Jason Clark, Ed Portal Staff; Carol Lynch, of Arlington; Phillip Lynch, of Arlington; Clint Attebery, of Somerville and Mary LaRosee of Brighton in a workshop taught by Charles Nesson, who spoke on: JuryX: Deliberations for Social Change, A Workshop in Active Citizenship I and II at the Education Portal at Harvard University
Rose Lincoln/Harvard Staff Photographer

After showing the clips, Nesson asked the attendees to gather in small groups and discuss the different points put forward. He encouraged them to negotiate what he called “the tinderbox of face-to-face conversation,” asking them to confront “the problem of listening … of coming to understand that the truth is an ambiguous object.”

“Litigators sometimes say that the truth lies at the bottom of a bottomless pit, and in fact, the Socratic process for approaching truth is one of polite, civil give-and-take. You know yourself that whenever you win an argument by anger and overpowering your opponent, you lose: It doesn't work. You actually win an argument when the other person sees you listening, sees a softening in your eye that signals understanding.”

After breaking into groups and discussing their different points of view, attendees voted on Question 4 via Post-it notes. The tally was 11 votes for the initiative, and seven against.

“Speaking to the question of civil discussion … I've thought about this matter, but I've never sat down with five other people I didn't really know and exchanged ideas like this,” said Brent Whelan '73, an Allston-Brighton resident and member of the Harvard-Allston Task Force.

“I have an extraordinary appreciation for the complexity of this question now. It became much more interesting in hearing these different points of view, and that seems like a great endorsement of what Professor Nesson is trying to accomplish with his 'JuryX' course.”

Kevin Casey, associate vice president for Harvard Public Affairs and Communications, said the event reflected Harvard's commitment to lifelong learning of all ages.

“The way that Professor Nesson distills decision-making and communicating is extraordinary - and today, that's more important than ever,” he said. “He poses important questions about our role as citizens, and how many varying viewpoints might form consensus.”

This article, “Professor has Ed Portal audience vote on legalization of marijuana,” by Jennifer Doody, Harvard Correspondent, was originally published in the Harvard Gazette, on Nov. 4.

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