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.

SEC Must End Mutual Fund Paper Chase

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Exploring Election 2016

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Animal-welfare advocate finds partner in growing Law School program

In 2006, Jeff Thomas swore off animal products.

For the philanthropist and Duke-educated author it wasn't one “aha” moment that turned him vegan and into an outspoken supporter of farm animals, it was a series of moments: dinner with a passionate vegetarian; the realization that a beautiful pet is essentially “no different from a beautiful cow”; the book “Animal Liberation” by Princeton philosopher Peter Singer.

Then there was the fundamental question about the human - and animal - condition.

“There is a logical path from existentially wondering how we can do the most good to helping farm animals,” said Thomas, adding: “Young people who are contemplating how to mitigate the most suffering should consider helping farm animals, where an ordinary person can positively affect millions of lives.”

Billions, in fact, when you count chickens.

According to the U.S. Department of Agriculture, 9 billion chickens, 115 million pigs, and 29 million cows were slaughtered in 2015 in the United States. Across the country, farmed animals are unprotected by any federal rules until shortly before slaughter and are exempt from the majority of state cruelty laws. Those facts stand in sharp contrast to a nationwide 2012 poll by the American Society for the Prevention of Cruelty to Animals in which 94 percent of respondents said that animals raised for food should be free from abuse or cruelty.

The confinement of factory-farmed animals has become a hot-button issue in recent years, with McDonald's and Walmart among the more than 200 U.S. companies pledging transitions to cage-free egg supply chains. A current Massachusetts ballot initiative seeks to prohibit keeping egg-laying hens in battery cages, confining mother sows in gestation crates, and tethering veal calves so they cannot move. The proposal also calls for banning the sale of food items produced in other states using such types of confinement.

“The Massachusetts ballot measure is poised to be the single most progressive piece of farmed animal protection legislation ever passed in the United States,” said Christopher Green, executive director of Harvard Law School's Animal Law & Policy Program. “Having this happen in our backyard as our program gets off the ground has allowed us to analyze the process in the classroom and given our students the opportunity to gain invaluable experience working directly on the campaign.”

Thomas has found a welcome partner in the HLS program. With his recent gift of $1 million and a subsequent matching gift of $500,000 to support individual donations of up to $50,000 through December, he is hoping to make farm animals central to animal cruelty prevention. It's a shared concern.

“How humans raise animals for food in this country and around the world affects animal welfare, human health, food safety, workers' rights, as well as climate change and the environment,” said Dean Martha Minow. “With the leadership of the Animal Law & Policy Program, and the marvelous generosity of Jeff Thomas, Harvard Law School pursues scholarship and work at the forefront of these critical concerns, and I am so grateful.”

Christopher Green with Kristen Stilt, HLS professor of law and the program's faculty director, Stilt's daughter, Lark, and Belle, a 14-year-old Hafflinger horse who lives at Winslow Farm, an animal sanctuary in Norton, Mass. Photo by Penelope Yan

The gift is to be used as the program's directors see fit, beyond a few important stipulations, said Green.

“Jeff wanted his resources to go toward items not already budgeted for, and he wanted the entire sum to be spent within seven years to ensure the gift would be implemented right away and help the program immediately expand upon its existing efforts.”

The gift has supported a new fellow to work on animal welfare aspects of a larger U.S. farm bill policy analysis being run by the HLS Food Law and Policy Clinic. Given the substantial impact factory farming has on animal welfare, public health, and environmental degradation, said Green, the program plans to hire additional fellows to work on farmed-animal policy in the coming year.

The program's work reaches well beyond U.S. borders. Its faculty director, Kristen Stilt, is collaborating with Harvard's South Asia Institute to examine animal agriculture from the Middle East to Asia.

This article, “Putting his money where his mouth is,” by Colleen Walsh, was originally published in the Harvard Gazette on Nov. 2, 2016.

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Addressing the systemic problems of rising health care costs in America

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The Wordsmith

Sarah Hurwitz '04 found herself “pretty lost” in her third year at Harvard Law School and missing her previous life as a political speechwriter.

So when a classmate asked in the fall of 2003 whether she might like to write for Wesley Clark's presidential campaign, she said yes-eventually. Her first job on Capitol Hill, when she was just a year out of Harvard College, hadn't gone very well since she couldn't quite capture her boss's voice. And the prospect of missing classes during her final year of law school shuttling back and forth to Arkansas terrified her.

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“The defining truth about working with the first lady is this,” says Sarah Hurwitz. “She always knows what she wants to say-period.”

“But I sat back and really started to think about it and realized that if … my real passion was government and politics, then I'd better do this,” Hurwitz said during a panel discussion at Harvard Law School's Celebration 60 in 2013.

Clark left the race early, but her work on the campaign set Hurwitz on a course to work as Hillary Clinton's chief speechwriter during the 2008 presidential race and then serve in the same role for first lady Michelle Obama '88.

It was on the Clark campaign, Hurwitz said, that she learned how to be a good speechwriter while working alongside Josh Gottheimer '04. That job led to another for Hurwitz with Democratic nominee John Kerry. She worked as an associate at WilmerHale before returning to the campaign trail in February 2007 with the Clinton campaign.

After helping draft Clinton's concession speech, Hurwitz received an email from Sen. Barack Obama's chief speechwriter, Jon Favreau, who followed up a few days later with a phone call offering her a job. Obama called to thank her after she wrote her first speech for him and welcomed her to the campaign.

Hurwitz began working with Michelle Obama on her speech to the 2008 Democratic convention in Denver. After writing speeches for President Obama, she would go on to work with the first lady almost exclusively for nearly six years.

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“For me, speechwriting is about telling the stories that too often just don't get told. There's a lot of quiet daily heroism in this country.”

“The defining truth about working with the first lady is this: She always knows what she wants to say-period,” Hurwitz told the Bulletin. “She has an unwavering sense of who she is and exactly what points she wants to make.”

Hurwitz has worked largely out of the public eye at the White House. There were occasional exceptions, such as a TV documentary that aired on cable networks including MTV and Nickelodeon in which she described how her public school education in Wayland, Massachusetts, paved the way for her career.

Her public profile grew considerably in July, when Melania Trump borrowed several lines from Michelle Obama's 2008 convention speech, which Hurwitz helped write.

Hurwitz has not commented publicly about the incident, but the irony was not lost on her former colleague Favreau, who noted in a tweet that Hurwitz had previously worked for Clinton. “So the Trump campaign plagiarized from a Hillary speechwriter,” Favreau wrote.

Hurwitz said she “loved working with Mrs. Obama on her three convention speeches” but also described as favorites some lesser-known speeches the first lady has delivered, including this year's commencement speeches at the Santa Fe Indian School and the City College of New York.

“For me, speechwriting is about telling the stories that too often just don't get told,” Hurwitz said. “There's a lot of quiet daily heroism in this country-people who get up every day and build lives driven by love, courage, and self-sacrifice.”

Accompanying the first lady to the New York commencement made Hurwitz think of her great-great-grandmother who'd wanted her daughters to attend “one of the great public universities in New York City.” “That didn't happen, but it was pretty moving all these years later to walk onto the campus of one of these schools with the first lady of the United States,” Hurwitz said.

Hurwitz, among the few White House staffers to have served through Obama's entire two terms, declined to say whether she would have any interest in staying on should her former boss win in November.

“I'm not sure what comes next,” she said. “For now, I'm just trying to enjoy every minute of this once-in-a-lifetime experience.”