Media Mentions

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.

An op-ed by Cass Sunstein: It’s Election Day, and there are already lawsuits challenging votes and voting procedures. Some of them are invoking the Supreme Court’s 2000 decision in Bush v. Gore, which effectively handed that year’s presidential election to George W. Bush. We should expect a lot more to come. Bush v. Gore is widely misunderstood. It rested on exceedingly narrow grounds. As the court put it, the key issue was “whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses.” The Florida Supreme Court had ordered a recount that would require votes to be counted in accordance with the “intent” of the voter. There’s nothing wrong with that. The problem was that Florida’s high court failed to lay down specific standards to ensure “equal application” of that principle. And indeed, the standards for accepting or rejecting ballots ended up varying widely, not only from one county to another, but even from one recount team to another. Back in 2000, many Florida voters used punch cards, and many of their votes produced only partly punched ballots, leaving those famous “hanging chads.” Should those ballots have counted? Different recount teams used different standards. That meant that whether a person’s vote would count depended on a kind of lottery — the specific recount team that was doing the counting. In the U.S. Supreme Court’s view, this was unequal treatment, and it violated the equal protection clause. At the same time, the court was careful to say that its ruling was limited to very rare and specific circumstances. “The recount process,” it said, “is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer.”

A podcast by Noah Feldman: Noah Feldman is a guest on this episode of Axios Today, giving listeners a taste of what to expect for election night.

Kenneth Mack, a historian and Harvard Law School professor, weighs in on the unusual history of America's first woman presidential nominee and its first Black vice presidential pick in 1872, just seven years after the end of the Civil War.

An op-ed by Isaac Green '22 and Malina Simard-Halm: We grew up in a world that was not ready for families like the ones in which we were raised. On Wednesday, the justices of the Supreme Court will consider whether that’s still true. We are among the first generation of children raised by two gay dads or two lesbian moms. Before we had learned to read, we learned our families were different—even despised by some. But the gay slurs, hostile glares, and bullying paled in comparison to the realization that our government did not stand behind us and our families—forbidding marriage and curbing parental rights, passing state constitutional amendments expressly denying our parents equal protection, and even criminalizing their sexual relationships. Over the past two decades the Supreme Court struck down these discriminatory laws and policies. But the question of whether our families fully belong is again before the court. On Wednesday, the court will hear arguments in Fulton v. City of Philadelphia, a case testing  whether discrimination against LGBTQ+ would-be adopters can be justified on religious grounds. Catholic Social Services, a religiously-affiliated child placing agency that refuses to work with same-sex couples, is asking the court to require Philadelphia to work with and fund it—even though Philadelphia otherwise requires that city-sponsored foster agencies deal with prospective families on a nondiscriminatory basis. If the court rules in favor of Catholic Social Services, it will send a clear message to people like us: that our parents are not good enough and our families are not worthy of the respect other families receive. Anyone is free to hold that view, but no appeal to religion should allow—much less require—our government to endorse it. We fear that this case could become the first salvo in a series of reactionary decisions from a newly reinforced conservative majority that would undermine the LGBTQ+ community’s hard-fought victories.

The US debate over the future of capitalism continues to flare with a proposal for new legislation that would shift companies away from “shareholder primacy” and into the realm of “stakeholder governance”. A newly published white paper, from non-profit organisations B Lab and The Shareholder Commons, proposes the US push through a Stakeholder Capitalism Act containing measures to give both company directors and investors revised fiduciary duties. In an article for the Harvard Law School governance blog, the paper’s authors argue that there is a need for urgent reform while insisting the best elements of capitalism must be retained. They say their policy measures are “designed to maintain the market mechanism inherent in profit-seeking but correct market failures that allow for profits derived by extracting value from common resources and communities, including workers.” Their legal reforms, they say, consist of “revised fiduciary considerations that extend beyond responsibility for financial return…” Among the key changes, the writers call for reforms that give investors a requirement to consider the “economic, social and environmental” implications of their decisions. The white paper also calls on investors to report on how they have met these new responsibilities...In the US, the debate around stakeholderism, or “purposeful” business, has been ongoing for some time. But in August last year the discussion was jet-fuelled when the Business Roundtable—a club for corporate leaders at some of the largest US corporates—declared its members would become “purpose-driven” corporates. A year on and a blizzard of articles have poured cold water on the idea that anything is different. Perhaps the most notable comes from academics Lucian Bebchuk and Roberto Tallarita, who say they found little evidence of change in Roundtable members. “Notwithstanding statements to the contrary, corporate leaders are generally still focused on shareholder value. They can be expected to protect other stakeholders only to the extent that doing so would not hurt share value,” they write in the Wall Street Journal.

Despite the urgent pressure of COVID-19 and other crises brought to us by 2020, stakeholder capitalism — the idea that corporations should take into account the interests of their stakeholders, not just shareholders — has remained at the top of the corporate news cycle. On the recent 50th anniversary of economist Milton Friedman's essay "The Social Responsibility of Business Is to Increase Its Profits" — which established shareholder primacy as the prime corporate directive — many legal, business and economic leaders challenged Friedman's legacy, favoring stakeholder capitalism over shareholder primacy. We think that it isn't an either/or situation. Stakeholder capitalism can work to benefit shareholders as well, but there must be collaboration between business and government in order to achieve the desired goals. In fact, a review of recent history shows us that collaboration between business and government is the optimal way to determine what is in the best interests of the stakeholders...How can we restore confidence? Stakeholder capitalism can help, by increasing the accountability of institutions for the constituencies they affect. However, in order for stakeholder capitalism to work, the government needs to take a central role, because corporations are not legally accountable to any parties other than their shareholders and the government. Moreover, corporate leaders are not incented to prioritize the interests of stakeholders, as concluded in a recent study by Harvard professors Lucian Bebchuk and Roberto Tallarita. And under corporate law in Delaware, where most large corporations are incorporated, directors have fiduciary duties to make decisions in the best interests of shareholders — not stakeholders. Delaware public benefit corporations allow directors to weigh a public benefit alongside shareholder interests, but do not provide for broader accountability.

Donald Trump is fighting to hold on to the White House. If he loses, an outcome that is growing increasingly likely, the protections afforded to him by the presidency will vanish. His status as president has protected him so far, but Trump could be slammed with a pile of personal lawsuits should he fail to secure re-election. The businessman and reality TV star is likely to face a litany of potential criminal suits, ranging from emoluments to rape charges, if Joe Biden secures enough electoral college votes on Tuesday. Trump's biographer David Johnston has even warned that the incumbent could face jail time once he leaves the Oval Office... “There are likely to be many federal crimes that investigation following Trump’s departure from office would reveal – crimes involving federal income tax evasion, wire fraud, bank fraud, insurance fraud, money laundering, and campaign finance law violations," Laurence Tribe, a professor at Harvard University, told Middle East Eye. The New York attorneys on the case have filed a subpoena for eight years of Trump's taxes, which the president tried blocking multiple times. In July, Trump lost an appeal that ruled he is not liable to a subpoena from a state grand jury. Tribe said that "no presidential pardon could operate to shield Trump or anyone else from such state prosecutions".

In June, the hashtag #DCblackout erupted on Twitter. A series of tweets claimed authorities had blocked protesters from communicating on their smartphones in order to tamp down on unrest around police brutality and the killing of George Floyd. Images circulated of an inferno raging beside the Washington Monument, illuminating the landmark dramatically in the nighttime. It was all false. The images were doctored. Local officials rushed to correct the misinformation. Twitter said it was investigating the situation and had already suspended hundreds of spammy accounts using the hashtag. It turned out the deception was the result of a sophisticated campaign that employed a combination of hacked accounts and fake accounts...Groups such as Win Black/Pa’lante have been working in recent months ahead of the election to monitor disinformation targeted at Black and Latino voters. Activists with the group have launched educational campaigns aimed at arming Black and Latino voters with tools to detect and avoid online manipulation. “These foreign agents pretend to be Black activists online, using Black cultural tones and norms most relevant to Black audiences, and ultimately depressing those votes by pretending or impersonating voices of Black activists and then turning on the candidates,” said Ashley Bryant, a co-founder of the group. Bryant said the group is closely watching efforts to amplify false claims of voter fraud — even from the Trump administration. The president, through tweets as well as news conferences and interviews, was the main source of falsehoods spreading about mail-in voter fraud, according to a recent working paper by Harvard’s Berkman Klein Center for Internet and Society.

A new report finds that President Trump and the Republican Party are driving online misinformation this election, not shady actors on Facebook or Russian trolls. When it comes to false claims about mail-in voting, Trump’s Twitter account functions as a press release, says Yochai Benkler, who led the team of researchers at Harvard University's Berkman-Klein Center for Internet and Society. Trump’s tweets make their way into headlines, which are amplified by the Republican National Committee, his campaign staff and the White House communication team, Benkler says. Both right-wing outlets and mainstream media have helped Trump spread false messages, Benkler says. Journalists don’t want to take sides or appear biased, he says, so Trump’s “outrageous” claims are put in headlines with a fact-check saying they’re false a few paragraphs down in the story. In August, the researchers started seeing more use of the truth sandwich. “Early on, this basic desire to grab a headline really helped him get his message outside of those inside the propaganda feedback loop and into the more mainstream,” Benkler says. A Cornell University study that analyzed 38 million articles about the pandemic found mentions of Trump made up nearly 38% of what they call “the misinformation conversation.” This makes the president the largest driver of falsehoods about the pandemic around the world. And here in the United States, Benkler’s team finds Trump and other Republicans are the biggest drivers of falsehoods about voting. Many media outlets have adopted a “dual-track” where they report Trump’s claims to look balanced and then go back to fact check, Benkler says. But what’s initially reported matters most, he says. “Nobody reads the fact check except for people who already want to find out that the president is lying,” he says. “You really do need to do the fact-checking before the headline is written. And the headline and the lead need to teach the audience what you're about to hear is false. Then you can really contain it.”

Axios' Margaret Talev and Mike Allen walk us through what they're preparing for on election night. Plus, how the election could come down to Pennsylvania's mail-in ballots. And, why voting is a sacred right. Guests: Axios' Margaret Talev and Mike Allen; Noah Feldman, constitutional law professor at Harvard University; and Rev. Otis Moss, senior pastor of Trinity United Church of Christ.