Media Mentions

A book review by Kenneth Mack: What’s wrong with the democratic experiment? As the United States faces what many believe are existential threats to its political processes, and fragile political systems around the world slip into new, technologically savvy variants of authoritarianism, many commentators say we are suffering a crisis of democracy. Some point to recent departures from bedrock norms that govern the conduct of government and the role of free speech in civic life, with campus debates over matters such as sexual harassment and unpopular speakers as examples of a new generation that has yet to learn the lessons of its forebears. Others argue that the nation’s political heritage is the problem rather than the solution, pointing to undemocratic governmental features such as the electoral college, as well as recent efforts by groups with declining electoral numbers to gerrymander legislatures, suppress Black and Latino votes, and engage in hardball politics to sustain illegitimate legislative, executive and judicial power. Ellis Cose, the eminent journalist, grapples with both explanations for our present crisis in his pithy and thought-provoking book, “The Short Life and Curious Death of Free Speech in America.” Cose contends that the death of traditional free-speech norms might in fact be a good thing, given our current challenges. That might sound like heresy coming from a veteran journalist, and Cose knows it.

Joe Biden has won the US presidential election, securing more than the 270 electoral college votes needed to win the race for the White House. Biden was projected by CNN, the Associated Press and other major news outlets, including the right leaning Fox News, as the winner of Pennsylvania on Saturday, taking his total to more than 284 electoral votes, above the threshold needed to clinch victory. But over the past few days, incumbent US President Donald Trump has repeatedly made it clear he won't consider a Biden victory legitimate...It's unlikely Trump will give Biden a congratulatory or concessionary phone call anytime soon, but what happens if he refuses to concede defeat? Following Saturday's announcement, Biden is expected to be sworn in as president at noon on 20 January 2021. At that point, Trump would become a private citizen with no authority or standing in the White House...Laurence Tribe, an American legal scholar and professor at Harvard University, said that regardless of what Trump says he will do, his "concession isn't necessary or even relevant". "The law is clear that the Joint Session of the new Congress that convenes on January 6, 2021, counts the Electoral Votes and designates the winner as the president-elect, who takes the oath as the 46th president of the United States at noon on January 20, 2021," Tribe told Middle East Eye. "Having been defeated, Trump will have no way to exercise presidential power after that point. Federal law makes it a crime for any private citizen to purport falsely to act as an executive officer. That law would apply to Trump, Pompeo, Barr, Mnuchin, DeVoss, and the entire Trump cabinet. Each member’s term ends no later than noon next January 20."

No matter the vote count, legal challenges and resistance in Washington continue to make this election historically fraught. David Remnick speaks about the state of the race with some of The New Yorker’s political thinkers: Susan B. Glasser, Evan Osnos, Jeannie Suk Gersen, and Amy Davidson Sorkin. Plus, Jill Lepore on threats to democracy in the past and how they were addressed.

The Harvard Gazette recently asked scholars and analysts across the University to reflect on lessons learned in a variety of areas from this unprecedented and…

The world cannot meet its most ambitious climate targets without eating less meat, a new study concludes. The research, published in the Science journal, looks at how various strategies involving the food system could help to reduce greenhouse gas emissions. These include a global switch to a “plant-rich” diet, reducing food waste and a move towards greater farming efficiency. Its results show that, even if fossil fuel emissions were immediately halted, some degree of dietary change will be necessary to keep global warming to below 1.5C above pre-industrial levels, which is the most optimistic target of the Paris Agreement...Coming up with policies to encourage people to sufficiently reduce their meat consumption and the wastage of food will be a “real challenge”, Dr. Clark said. Such policies could include environmental labelling on food to give consumers information about the emissions caused in the production of food, he added. The research shows the world “needs to reduce food emissions strongly and rapidly”, says Dr. Helen Harwatt, a senior research fellow at Chatham House and food and climate policy fellow at Harvard Law School, who was not involved in the study. She told The Independent: “This is especially relevant if we want to avoid going above 1.5 degrees Celsius of warming in the next decade or so. While shifting to plant-based eating patterns is the most crucial part, it’s not the only part. We need to see a meaningful inclusion of food systems in revised pledges to the Paris Agreement over the coming year.”

Two years after Missouri voters enacted a first-of-its-kind initiative intended to create “partisan fairness” in voting districts, they have changed their minds. Before the measure could be used, voters reversed key parts of it in Tuesday’s election. They opted instead to return to a method that will let commissions composed of Democratic and Republican loyalists redraw state legislative districts after census results are released. The Missouri vote broke a string of nationwide electoral victories for redistricting reform advocates and opened the potential for Missouri to experiment with another nationally unique model — one that could exclude noncitizens from the population totals used in redistricting. Some supporters of the 2018 initiative, known as Clean Missouri, asserted that voters were tricked into undercutting it by the Republican-led Legislature, which placed Amendment 3 on this year’s ballot. The amendment passed with just 51% of the vote...The Republican-backed measure also deleted a requirement to base districts on the total population tallied by the census. It instead references a Supreme Court standard of “one person, one vote.” Hegeman said the measure’s silence on “total population” could give redistricting commissioners the option of using only the citizen population. Opponents argued it also could let commissioners use only the voting-age population, which could exclude children from the count. All states currently base redistricting on total permanent population. An attempt to exclude noncitizens from Missouri’s redistricting likely would be challenged in court but may have little political effect, because Missouri has relatively few non-citizens, said Nick Stephanopoulos, a law professor at Harvard University. “It’s almost inviting unnecessary controversy,” he said, and “it opens the door to lots of legal jeopardy.”

President Donald Trump and the Republicans have launched a number of lawsuits against battleground states where vote-counting continues, although judges in two states — Georgia and Michigan — had rejected their claims by Thursday afternoon. To discuss, Jim Braude was joined by Margery Eagan of GBH News and Jeannie Suk Gersen, a professor at Harvard Law School and a contributing writer at the New Yorker magazine.

The news-style YouTube video posted Wednesday by the pro-Trump One America News network was loaded with bogus claims: “Boldly cheating” Democrats had stolen a “decisive victory” for President Trump by “tossing Republican ballots, harvesting fake ballots” and calling their “antifa buddies to cause chaos … so that Americans stop focusing on the election and start fearing for their own safety.” Officials at YouTube, the world’s largest video site, said the clip showcased “demonstrably false content that undermines trust in the democratic process,” and they blocked it from pulling in advertising money. But they kept it viewable, attaching only a small disclaimer saying election “results may not be final,” because they said it did not directly break rules against videos that “materially discourage voting.” It has been viewed more than 400,000 times...Evelyn Douek, a lecturer at Harvard Law School who researches online speech, said video sites like YouTube too often get a pass from the discussions over hate speech, conspiracy theories and viral misinformation that have defined Facebook’s and Twitter’s last few years. Part of that is technical: Videos are harder to track and more time-consuming to check than simple, searchable text. But Douek also said it’s because regulators and journalists underappreciate the major pull videos have on our information ecosystem: YouTube’s parent Google says more than a billion hours of video are watched there every day. Unlike other social media sites, Douek said, YouTube had no policy addressing false claims of victory heading into the election, and the site didn’t publish a policy banning medical misinformation about covid-19 until May 20, when more than 90,000 people in the U.S. had already died.

It was a presidential election befitting the past four years, unprecedented and contentious...The Gazette asked scholars and analysts across the University to reflect on lessons learned in a variety of areas...Tomiko Brown-Nagin: “This election crystalized American promise and American peril. Fifty-five years after passage of the Voting Rights Act and 100 years after ratification of the 19th Amendment, the fundamental right to vote — the essence of a democracy —remains ferociously contested and deeply cherished. Turnout was extraordinary! An estimated 67 percent of eligible voters cast ballots — almost 160 million people — the greatest number in more than 100 years...At the same time, we witnessed a concerted effort to suppress the vote, to intimidate voters, and to delegitimize legally cast votes.” ... Sandy Levinson: “What we learned was that the uncertainty of this election is entirely a function of the crazy way that Americans elect their president, which is through the Electoral College. This means, for example, that [President] Trump gets nine electoral votes for carrying the two Dakotas plus Wyoming, which collectively have only about 200,000 more residents than New Mexico, which contributed only five votes. What remains an ‘interesting’ question, if one is an academic, is why Americans persist with such a truly dysfunctional system of presidential election.” ... Carol Steiker: “What I have learned in this election is that despite, or perhaps because of, the anger and divisiveness that have marked this political season, it is possible to substantially shift the needle on popular political engagement. We are seeing levels of voter turnout in this election not seen in more than a century, since William Howard Taft defeated William Jennings Bryan in 1908.” ... Kenneth Mack: “What I have learned from this election so far is both a lot and a little. Historians typically look at elections as vehicles for possible political, economic, or social change. Certainly in the run-up to this year’s election we’ve seen some things change significantly. We have the first woman of color on a major party ticket (who now seems poised to become vice president), Black candidates seeming to run competitively statewide in several Southern states, and efforts to suppress minority voting of a kind we haven’t seen in decades.” ... Yochai Benkler: “ The right-wing propaganda feedback loop, anchored in Fox News and talk radio and supported by online media, has played two critical roles in the election. The first, and most foundational, is that throughout the presidency of Donald Trump it offered an alternative reality, in which the president was a strong, effective leader hounded by an alliance of Democrats who hate America and Deep State operatives bent on reversing the victory of Trump, the authentic voice of the people.”

Facebook removed a viral group falsely claiming that “Democrats are scheming to disenfranchise and nullify Republican votes” after it gained more than 350,000 members in a single day. The hasty enforcement action against a political group was unusual for Facebook and raised questions about the consistency and transparency of the company’s content moderation. The group, “Stop the Steal”, was established by a rightwing not-for-profit group, Women for America First, and run by a team of moderators and administrators that included the longtime Tea Party activist Amy Kremer. Members were encouraged to provide their email addresses to a website calling for “boots on the ground to protect the integrity of the vote”, as well as to donate money...Facebook’s hasty action on the Stop the Steal group stands in marked contrast to its handling of other domestic groups that have organized on its platform. The company dragged its heels for months before taking action against the anti-government “boogaloo” movement, which has been linked to multiple murders, and against the antisemitic conspiracy theory QAnon, which has also been linked to violence and identified as a potential domestic terrorism threat. The inconsistency and lack of transparency around Facebook’s approach to content moderation drew quick criticism from experts in the field and digital rights advocates. “It really matters that platforms should be as clear in advance about their policies and consistent in their application,” said Evelyn Douek, a lecturer at Harvard law school who studies online speech regulation. “That helps fend off charges that any decisions are politically motivated or biased, and gives us a lever to pull for accountability that isn’t purely about who can get the most public attention or generate public outrage.”

An op-ed by Cass Sunstein: The current confusion and anxiety surrounding presidential vote-counting, with different states using different rules and procedures, make it natural to wonder: Wouldn’t it have been better to let the federal government oversee the process? The framers of the U.S. Constitution didn’t think so, for reasons of principle. Some of the foundations of their thinking can be found in the Federalist Papers, written mostly by Alexander Hamilton and James Madison (with a few by John Jay), among the greatest works in all of political science and the most important contemporaneous explanation of the framers’ thinking. Federalist No. 51, written by Madison, may be the best of the 86 essays, and it speaks, with great specificity, to the situation following this week’s national election. The least famous passage in that essay, and the most relevant today, is about one thing: federalism. It tells us a lot about how to think about vote-counting — and about the role of the president and Congress in that process. The essay is mostly a celebration of the system of checks and balances. As Madison put it, “Dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” The system of separated powers — Congress, the president, the judiciary — provides some of those precautions. But that was not nearly enough. Madison drew attention to “considerations particularly applicable to the federal system of America.” Ours is a “compound republic,” he wrote, in the sense that “the power surrendered by the people is first divided between two distinct governments.” There is the national government, and then there are the states, and this division creates essential security for “the rights of the people.” In important cases, “the different governments will control each other.” These are abstract ideas, but they bear directly on presidential elections, and they help explain the constitutional provisions that govern them.

An op-ed by Noah Feldman: Regardless of what happens in the vote counting, President Donald Trump has said he is going to the Supreme Court to ask for … something or other. When he does, he will have to overcome a hurdle of his own making: his claim to have “already” won the election, made during his rambling speech at 2:30 a.m. The justices — including the crucial conservatives like Justices Brett Kavanaugh and Amy Coney Barrett — will not like the speech, which puts them in the position of being asked to validate an obviously preposterous claim and an effort to steal the election before all the votes are tallied. Trump of course didn’t specify exactly what he would ask the Supreme Court to do, stating only that the “voting” must stop. But voting is already over. It’s vote-counting that’s continuing. So it seems reasonable to assume he meant his lawyers would ask for some sort of stop to the counting. There are three things Trump’s lawyers might do. They can go straight to the Supreme Court and ask for a general shutdown in counting. But that won’t work. There is no legal basis for not counting votes. What’s more, you normally can’t just go to the Supreme Court without first going to lower courts. Worst for Trump, he’s now behind in the count in states he needs to win — so it would make no sense to ask for a general stop to counting. Trump’s lawyers can also try to challenge individual ballots in states where they are trying to eke out victory. This is slow work — done retail, not wholesale. It makes sense when an election comes down to a few votes in a few key states. In addition — the most plausible reading of Trump’s comments — Trump can ask the justices to block the counting of Pennsylvania ballots that arrived after 8 p.m. on Election Day. This issue has already been before the court, which declined to intervene. But three conservatives invited Trump’s lawyers to come back and try again. If the election comes down to Pennsylvania, we would have the scenario for Bush v. Gore redux.

President Trump has made no secret of his intention to file legal challenges in key states where election results were close. Legal scholars are not convinced there’s a plausible argument that his legal team could make in these new actions that would prove successful in court.

Chad Williams, chair of the department of African and African American Studies at Brandeis University, admits he was optimistic heading into Tuesday night. He had hoped “America would get it right this time” and that Joe Biden would win resoundingly. But as he watched President Trump gain an edge in key swing states like Florida and North Carolina, it became apparent to Williams that the president hadn’t lost his appeal. Indeed, in some counties, Trump did better Tuesday night than he did in 2016. At 9:44 p.m. Williams tweeted, “Damn, white supremacy is resilient.” As results trickled in, it became evident that neither candidate would be able to claim a quick and decisive victory. But to some Black Americans, muddled voting tallies signaled a clear victor: American racism...A critical voting bloc for Democrats who overwhelmingly rejected Trump in 2016, many Black voters felt the choice for 2020 was clear: A vote for the incumbent would be a vote in favor of racist policy and rhetoric. But even given the stakes — and following a summer that saw millions march for racial justice — the country overall was split roughly down the middle, a fact that several exasperated Black voters called “disappointing but not surprising.” “The impulse in this country for the status quo never ceases to amaze me . . . and on some level, that’s a strength — that’s how we get stability,” said David Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. “But that stability is a system of white supremacy and racial oppression.” In the last few months of the campaign, Trump capitalized on the fears of white suburbanites, with inflammatory talk of law and order and rising crime. Long before final results were set to be called in Michigan, Wisconsin, and several other key states, social media was already abuzz with lessons drawn from the close contest.

Chicago voters faced a simple question on their 2020 ballots: “Should the City of Chicago act to ensure that all the City’s community areas have access to broadband internet?” By a nine-to-one margin, they answered “yes.” The result is significant for what it says about public attitudes toward the internet. In the context of a broader debate about whether we should treat the internet like a public utility, Chicago voters signaled that the most basic formulation of this idea—that the government should make sure citizens have internet access—is overwhelmingly popular...The Chicago ballot measure, by itself, won’t make citywide broadband a reality. The referendum was non-binding, meaning city officials are free to ignore it, and voters only supported internet access in the abstract, without having to actually think through the cost of making universal broadband access a reality. But it does give mayor Lori Lightfoot political cover for more projects like the $50 million public private partnership the city unveiled in July to bring broadband into the homes of 100,000 students...Harvard law professor Susan Crawford argues that the internet must follow the path other basic services, like electricity, took from being a demand-driven luxury to a publicly regulated utility. Governments in South Korea, Japan, Hong Kong, and Singapore made that shift early, and their residents have widespread access to low-cost fiber optic internet. With continued investments in initiatives like Chicago’s broadband project and federal grants for rural internet co-ops, the US could follow suit.

An op-ed by Van Jones and Lawrence Lessig: Election night is over, but the election is not. And given the unexpectedly tight race, Pennsylvania's 20 electoral votes may be those that decide who wins the White House. To be sure, Biden still has a path to victory that doesn't involve Pennsylvania, but he could end up needing the state if he suffers reverses elsewhere. The key for Pennsylvania to have an orderly and complete vote count is for the state to take its time. And the key precedent that should show Pennsylvania that it may take its time is not Florida in 2000, but Hawaii in 1960. Even though Richard Nixon said it should not be a precedent, what he did in 1960 should be the model for this election in 2020. In 1960, Hawaii's vote was incredibly close. On the first count, Nixon had beaten John F. Kennedy by 141 votes.On November 28, the acting governor certified a Republican slate of electors. They met on December 19 and cast their ballots for Nixon. But a recount showed that, in fact, Kennedy had won the popular vote by an even closer margin of 115 votes. That recount had been completed on December 30, 11 days after the Republican electors from Hawaii had cast their votes for Nixon. Five days later, the governor sent Congress a new certification of electors, this time naming the Democratic electors as the electors properly chosen by Hawaii's voters. That certification arrived in Congress on January 6, the day that Congress was to count the electoral votes. When then Vice President Nixon, who the Constitution had set as the custodian of the electoral votes, began to "open all the certificates" as the Constitution directs him, and came to Hawaii in the list of states, he announced that there were two slates of electors from Hawaii, one Republican and one Democratic.

President Trump has made no secret of his intention to file legal challenges in key states where election results were close, citing the possibility of voting fraud. For months, he has criticized the nationwide expansion of mail-in balloting, a longstanding practice that gained ground rapidly because of social-distancing concerns during the pandemic. Trump filed lawsuits Wednesday to stop vote counts in Pennsylvania and Georgia, along with Michigan, shortly before the Associated Press said his opponent, former Vice President Joe Biden, had won the state. Officials are still counting votes in Nevada, Arizona, and Pennsylvania, which only started tallying more than 3 million mail-in ballots on election night...But scholars are not convinced there’s a plausible argument that the president’s legal team could make in these new actions that would prove successful in court. “There’s no claim I can think of that would shut down the counting of lawful, valid mail-in ballots in Pennsylvania,” said Harvard Law School Professor Nicholas Stephanopoulos, who studies election law...Though the president nominated hundreds of judges to the federal bench during his tenure, the courts aren’t likely to simply go along with the president’s demands, analysts said. “I think the very fact that the president has advertised that they are ‘his’ judges that he’s relying on to stop the counting both dares them to assert their independence in a way that is going to make it less likely that they will depart from what is a normal legal way of thinking about this and, ironically, undermines the effort he’s likely to make, [which is] to claim that Biden is somehow an illegitimate president because it will be Trump’s own judges who will be rebuffing his attempts,” said Laurence Tribe, Carl M. Loeb University Professor emeritus at Harvard Law School.

A podcast by Noah Feldman: Richard Pildes, a professor at New York University School of Law who specializes in legal issues affecting democracy, discusses the role that the courts could play in this election.

An op-ed by Noah Feldman: Legally speaking, President Donald Trump’s various election lawsuits amount to nothing. On Wednesday the Trump campaign announced an array of different legal efforts to fight Joe Biden’s apparently impending Electoral College victory. This included attempts to stop the vote counting in Michigan and Pennsylvania, and a motion to be heard by the Supreme Court in the case about ballots that arrived or will arrive in Pennsylvania after 8 p.m. on Election Day. The campaign also filed a lawsuit in Georgia claiming a poll worker improperly mixed up absentee ballots, and asked for late-arriving ballots to be segregated. Although Georgia is close, this isn’t the stuff of which election-changing lawsuits are made. (Trump’s lawyers also say they will seek a recount in Wisconsin; but that is extremely unlikely to erase Biden’s roughly 20,000 vote margin there.) Start with the attempts to stop the counting. These are legally vacuous and don’t pass the laugh test. Trump’s Michigan filing asks the state courts to stop tallying votes, alleging that the state’s absentee vote counters are proceeding without the presence of election inspectors and vote “challengers” from each party, as Michigan law requires. The problem with this argument is that, as far as is possible to determine, Michigan is indeed allowing Democratic and Republican inspectors and challengers. So the Trump campaign is further arguing that the state violated the law because it has not shown the Trump “challengers” the video of the drop-off boxes from which the absentee ballots are being taken. Strange as it sounds, the Trump campaign seems to be arguing that the counting of votes should be stopped because his representatives haven’t been able to see video of the drop-off boxes.

Uber Technologies Inc. and Lyft Inc. jumped in U.S. premarket trading Wednesday after California voters approved a measure to protect the companies’ business models from efforts to reclassify their drivers in the state as employees. Uber shares jumped 13% while Lyft rose 17% premarket following the passage of Proposition 22, an initiative crafted and bankrolled by gig-economy companies to exempt their workers from a new law designed to give them employee benefits. The ballot measure in their home state was the costliest in California history. Uber and Lyft, along with venture-backed food delivery companies DoorDash Inc., Instacart Inc. and Postmates Inc., contributed about $200 million to fund “Yes on 22.” Labor unions and other opponents raised only about $20 million. The reaction from investors Wednesday reflects not just the stakes in California but also expectations of what will happen elsewhere. Officials in New York, Illinois and other states have also considered bolstering labor protections in the gig economy. “This could be seen as a shot across the bow,” said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School. “Everybody’s looking at California.” Under the new law, gig companies have agreed to provide some new protections to California workers, including a guaranteed wage for time spent driving and a health insurance stipend, but does not include paid sick leave, unemployment insurance and other standard protections afforded under California labor laws. Tom White, an analyst at DA Davidson, said the result “is probably most impactful for Lyft in the near-term,” given that California accounts for about 16% of Lyft’s rides. He estimates the state represents a high-single digit percentage of Uber’s overall business. Uber is scheduled to release quarterly financial results on Thursday, and Lyft reports Nov. 10.

Millions of voters across the US received robocalls and texts encouraging them to stay at home on Election Day, in what experts believe were clear attempts at suppressing voter turnout in the closely contested 2020 political races. Employing such tactics to spread disinformation and sow confusion amid elections isn’t new, and it’s not yet clear whether they were used more this year than in previous elections—or what effect they actually had on turnout. However, there is some speculation that given the heavy scrutiny of election disinformation on social media in the wake of the 2016 presidential election, malicious actors may have leaned more on private forms of communication like calls, texts, and emails in this election cycle...The use of robocalls for the purpose of political speech is broadly protected in the US, under the First Amendment’s free-speech rules. But the incidents described above may violate state or federal laws concerning election intimidation and interference. That’s particularly true if the groups that orchestrated them were acting in support of a particular campaign and targeting voters likely to fall into the other camp, says Rebecca Tushnet, a law professor at Harvard Law School. The tricky part is tracking down the groups responsible, says Brad Reaves, an assistant professor in computer science at North Carolina State University and a member of the Wolfpack Security and Privacy Research Lab. The source of such calls is frequently obscured as the call switches across different telecom networks with different technical protocols.