The 2020 U.S. presidential election: HLS faculty and scholars weigh in

A hand wearing a surgical glove holding an absentee ballot with blurred images of USPS mailboxes in the background.

Credit: iStock/Bill Oxford

HLS faculty and legal scholars consider the legal concerns and challenges that have emerged—including those involving election misinformation, voting by mail, and COVID-19—as the United States prepares for the 2020 presidential election.

The following selection of their articles, interviews, and op-eds will be updated regularly.


California officials see boon in Biden’s climate plan

Even as California aspires to a more sustainable, climate-friendly economy, the environmental degradation Bahram Fazeli witnesses daily is an unwelcome reminder of how much the state is held back by a federal government pushing in the other direction. The oil wells, refineries, metal-finishing businesses and hazardous waste facilities in Wilmington and Huntington Park, where the environmental activist works, leave residents of those primarily Latino communities acutely exposed to health risks. Fazeli has lost patience with the pace of change…That urgency gives the state a particularly large stake in the outcome of an election that poses a drastic contrast on climate issues — a White House steeped in climate denial and closely allied with fossil fuel companies versus a Democratic candidate who has embraced a $2-trillion climate plan that would rely heavily on California innovation and ambition as a template for fighting global warming across the country. The Trump administration has spent billions of dollars in an almost entirely unsuccessful effort to prop up the nation’s coal industry and has given priority to coal and oil production over renewable sources. The administration’s policies have put the economic interests of regions heavily dependent on coal and oil production ahead of states like California. Biden would largely reverse that. California’s senior elected officials — all Democrats — believe Biden’s election would unleash a flurry of initiatives in the state designed to reshape the energy and transportation sectors and shift money to low-income communities suffering the most from pollution caused by fossil fuels. “It would be going from pushing a rock up a mountain to running downhill with the wind at your back,” said Jody Freeman, who was President Obama’s advisor on climate change and now directs the environmental law program at Harvard.

Continue Reading at Los Angeles Times »

A Back-to-Basics Primer for Conservatives

An op-ed by Cass SunsteinA well-functioning democracy requires at least two parties, armed with different ideas and approaches. If Republicans lose the White House to Democratic nominee Joe Biden, what ideas and approaches should they champion? Many Republicans might want to go back to basics and recover some of the foundations of conservative thought, as laid out by such thinkers as Edmund Burke, Michael Oakeshott and Russell Kirk. They might not be eager to seek advice from anyone who is not a trusted conservative. But one of the most clarifying accounts of the conservative tradition comes from a remarkable book, “The Rhetoric of Reaction,” written by the economist Albert Hirschman in 1991. Hirschman himself was no conservative. His aim was to offer a catalog of standard rhetorical “moves” by those opposed to social reform. But Hirschman paid careful attention to centuries of conservative ideas, and he was aware of the power of those moves. He had too much integrity to deny that, some of the time, those who make them are entirely correct. If Biden is elected and tries to deliver on his campaign promises, those on the right would find Hirschman’s catalog useful. Hirschman divided the objections to progressive reforms into three different categories: perversity, futility and jeopardy. Of these, the most effective is the perversity argument. The basic claim is that many seemingly appealing reforms are self-defeating; they hurt the very people they are supposed to help. Societies are systems, and if you interfere with one part of them, you might not like what happens.

Continue Reading at Bloomberg »

Week In Review: Pandemic, Politics, And Policing

Here is the Radio Boston rundown for Oct. 16. Tiziana Dearing is our host. This week was about the pandemic, politics and policing. There are now 63 cities and towns designated as high risk for the coronavirus in Massachusetts, which is 23 more than last week. In Washington, just three weeks before the presidential election, the Senate Judiciary Committee started Supreme Court confirmation hearings for Judge Amy Coney Barrett, while the presidential candidates held dueling town halls. Back here in Boston, Mayor Walsh announced that he would adopt all four prongs of a police reform task force report, making changes to police oversight, addressing issues of diversity and inclusion, the use of force and police body cameras. We take listener calls and discuss it all with our Week in Review panelists: retired federal judge Nancy Gertner and Joe Battenfeld, political columnist at the Boston Herald.

Continue Reading at WBUR »

The Post-Trump Clean-Up (with Bob Bauer and Jack Goldsmith)

On this week’s episode of Stay Tuned, “The Post-Trump Clean-Up,” Preet answers listener questions about the hypothetical pardoning of President Trump, the presidential native-born citizen requirement, and the process for impeaching a Supreme Court Justice. Then, Preet is joined by legal scholars Bob Bauer and Jack Goldsmith, authors of After Trump: Reconstructing the Presidency, to discuss their ideas for strengthening the rule of law and reforming our government. In the Stay Tuned bonus, Bauer (who reportedly played President Trump on Biden’s debate prep team) gives his observations of the first presidential debate, and Goldsmith offers his concerns about the line of presidential succession. To listen, try the CAFE Insider membership free for two weeks and get access to the full archive of exclusive content, including the CAFE Insider podcast co-hosted by Preet and Anne Milgram.

Continue Reading at Cafe »

Trump Can’t Ignore the Election Results Without a Lot of Help

An op-ed by Noah FeldmanLast night, President Donald Trump took a tiny step back from his repeated refusals to say he’ll leave office if he loses the election. Yet he continued to portray a fair election as nearly impossible. The result is to continue to cast doubt on the election result and give himself room to challenge it if he loses the election “unfairly.” These claims are deeply harmful to our democracy — that much should be obvious. But it’s useful to divide the harm into two parts, to understand how worried we should be and figure out what we should do about it. Merely saying that he might not agree to leave office violates our unwritten democratic norms. Actually not leaving would violate our written laws. The first Trump can do alone, and he already has, on several occasions. That alone throws public confidence in our system into disarray. But the second would be far worse. Claiming election fraud and refusing to accept a clear loss would precipitate a constitutional crisis on a scale not seen since the Civil War. Fortunately, Trump can’t do it alone. He would need the collusion of hundreds, maybe thousands of other people in the government, from poll officials to state legislators to members of Congress. If that happens, our democracy will not just be under threat from an irresponsible leader. It will be on the edge of collapse. This possibility is vanishingly small.

Continue Reading at Bloomberg »

Twitter Changes Course After Republicans Claim ‘Election Interference’

President Trump called Facebook and Twitter “terrible” and “a monster” and said he would go after them. Senators Ted Cruz and Marsha Blackburn said they would subpoena the chief executives of the companies for their actions. And on Fox News, prominent conservative hosts blasted the social media platforms as “monopolies” and accused them of “censorship” and election interference. On Thursday, simmering discontent among Republicans over the power that Facebook and Twitter wield over public discourse erupted into open acrimony. Republicans slammed the companies and baited them a day after the sites limited or blocked the distribution of an unsubstantiated New York Post article about Hunter Biden, the son of the Democratic presidential nominee, Joseph R. Biden Jr…Late Thursday, under pressure, Twitter said it was changing the policy that it had used to block the New York Post article and would now allow similar content to be shared, along with a label to provide context about the source of the information. Twitter said it was concerned that the earlier policy was leading to unintended consequences. Even so, the actions brought the already frosty relationship between conservatives and the companies to a new low point, less than three weeks before the Nov. 3 presidential election, in which the social networks are expected to play a significant role. It offered a glimpse at how online conversations could go awry on Election Day. And Twitter’s bob-and-weave in particular underlined how the companies have little handle on how to consistently enforce what they will allow on their sites. “There will be battles for control of the narrative again and again over coming weeks,” said Evelyn Douek, a lecturer at Harvard Law School who studies social media companies. “The way the platforms handled it is not a good harbinger of what’s to come.”

Continue Reading at New York Times »

How a Biden White House can hold Trump accountable by holding itself back

An op-ed by Laurence Tribe and Joshua Geltzer: There are many ways a future presidential administration could pursue accountability for Trump-era transgressions. Inspectors general at a range of federal agencies, the Office of Government Ethics, investigators and prosecutors at the Justice Department, or even some new truth commission might each lay claim to some aspect of what is sure to be a considerable task. Here’s who should stay out of it: the White House. The next president will face intense pressure to meddle in the quest for accountability, and he may be tempted — for good reason. Accountability for the Trump years is essential. Under President Trump, the government’s political leaders have abused their powers and the public’s trust in appalling ways, including for personal profit, political benefit and even sheer indulgence. The next administration must not, for our democratic future, treat Trump as having simply made some foolish policy calls or adopted some lousy legal positions. Trump is something worse: a president who has exploited the country rather than serving it; whose behavior in office has been corrupt, improper, unethical and possibly criminal. We need to know how it happened so we can stop it from happening again. But the whole point of such work is to get beyond politics. Political differences on, say, health care, foreign policy and immigration account for the ordinary swings between administrations of different parties. The White House drives those changes, because they represent the campaign platform that got the new president elected, and because it frequently takes White House leadership, even pressure, to steer the federal bureaucracy in a new direction.

Continue Reading at Washington Post »

These Are The Nightmare Scenarios For The 2020 Election

The 2020 presidential election could be so tight, and the result so hotly contested, that the losing party refuses to concede, triggering a chaotic free-for-all in which Congress, the courts, and, in the most extreme case, the military could determine the winner. It may sound far-fetched, but the Constitution has major gaps when it comes to deciding a contested presidential race…Now let’s take the alternative scenario from above, where the Florida legislature replaces the pro-Biden slate of electors with a pro-Trump slate. Congress oversees counting the Electoral College votes. Both slates of electors from Florida — those ready to vote for Biden, and those for Trump — would surely show up in Washington claiming to represent the true will of the people. Who chooses which set of votes to count? Some say it would be Vice President Mike Pence in his capacity as president of the Senate. But most experts agree that decision falls to Congress. What happens if a split Congress can’t agree on which votes to count? The Constitution has no answer. In a true nightmare scenario, Pelosi declares the electors invalid, refuses to count the votes, and claims, in the scenario laid out above, that the House has the power to declare Biden the winner. Then, Senate Republicans rally behind Trump while Pelosi and the Supreme Court face off over who has authority. “If it’s a contest between Nancy Pelosi and the Supreme Court, we have no idea,” said Lawrence Lessig, a professor of law and leadership at Harvard Law School. “At some point, it’s the military’s judgment — because if Trump refuses to leave, who’s going to show up at the White House on Inauguration Day and escort him out?” …Lessig said he believes the courts would ultimately get involved to avoid the appearance of a stolen election. “These are people who think about history. That’s what their whole lives are about,” he said. Still, at a time when norms are being shattered and the president is openly talking about neutering the United States Postal Service’s ability to count millions of mail-in ballots, Lessig says unimaginable scenarios have become very imaginable. “The question is not what’s reasonable or fair,” he said. “The question is what’s possible.”

Continue Reading at Buzzfeed »

Trump, lagging in polls, pressures Justice Dept. to target Democrats and criticizes Barr

President Trump publicly pressured the Justice Department on Friday to move against his political adversaries and complained that Attorney General William P. Barr is not doing enough to deliver results of a probe into how the Obama administration investigated possible collusion between Russia and the 2016 Trump campaign. The delayed report is “a disgrace,” and Trump’s 2016 Democratic opponent, Hillary Clinton, should be jailed, Trump said in a rambling radio interview, one day after he argued on Twitter that his current Democratic opponent, Joe Biden, is a criminal who should be barred from running. Three weeks before the election and as he trails Biden in polls nationally as well as in key states, Trump is issuing a new torrent of threats and demands for federal action against Democrats, including former president Barack Obama, that go beyond his familiar and often erroneous claims of wrongdoing by his perceived political enemies…The president’s calls for the Justice Department to target his political opposition in the heat of a presidential campaign is a jarring moment without precedent in modern American history. But it is in keeping with Trump’s actions when he has faced adversity, which now includes testing positive for the coronavirus last week after for months minimizing the threat posed by a deadly virus that has killed more than 213,000 Americans. “The behavior would be shocking in a normal presidency, but Trump has literally been doing this for years,” Harvard Law School professor Jack Goldsmith, a Justice Department official in the George W. Bush administration, said of Trump’s calls to go after Democrats. “So it is reprehensible, but not shocking.”

Continue Reading at Washington Post »

Twitter’s answer to election misinformation: Make it harder to retweet

Twitter announced on Friday — less than 30 days ahead of the US election — that it’s enacting a series of significant changes in order to make it harder to spread election misinformation on its platform. It’s one of the most aggressive series of actions any social media company has taken yet to stop the spread of misinformation on their platforms… “As always, the big question for both platforms is around enforcement,” wrote Evelyn Douek, a researcher at Harvard Law School studying the regulation of online speech, in a message to Recode. “Will they be able to work quickly enough on November 3 and in the days following? So far, signs aren’t promising.” Twitter already has a policy of adding labels to misleading content that “may suppress participation or mislead people” about how to vote. But in recent cases when President Trump has tweeted misleading information about voting, it’s taken the platform several hours to add such labels. Facebook has similarly been criticized for its response time…Douek said that platforms “need to be moving much quicker and more comprehensively on actually applying their rules.” But, she added, if “introducing more friction is the only way to keep up with the content, then that’s what they should do.” The concept of “friction” to which Douek is referring is the idea of slowing down the spread of misinformation on social media to give fact-checkers more time to correct it. It’s also an ideal that many misinformation experts have long advocated. Overall, misinformation experts, including Douek, lauded Twitter for introducing friction by nudging users to think twice before sharing misleading content.

Continue Reading at Vox »

How Not to Cover Voter Fraud Disinformation

An article by Yochai BenklerNo group of people has a more important role to play in shaping how Americans think about mail-in voter fraud than editors and journalists who write for local and regional newspapers, local television news, the broadcast networks, and for those who produce the syndicated news these outlets use. My team and I at Harvard’s Berkman Klein Center for Internet and Society came to this remarkable conclusion in a report about the months-long disinformation campaign that Donald Trump and the Republican Party mounted to sow doubt about mail-in voting. We analyzed tens of thousands of online stories and Facebook posts, and millions of tweets, using network analysis, text analysis, and qualitative research. Contrary to widespread concern with Russia or Facebook as vectors of election disinformation, our findings told a different story. All peaks in attention and coverage of mail-in voter fraud were triggered by statements or actions of political elites, particularly Donald Trump through three channels: his Twitter account, press briefings, and television interviews on Fox. Trump was, in turn, reinforced by his staff, the RNC, and other Republican leaders. Social media played a secondary role, recirculating stories published by major media outlets about the actions or statements of the political actors pushing the false narrative. President Trump perfected the art of harnessing mass media to disseminate and reinforce his disinformation campaign.

Continue Reading at Nieman Reports »

Tracing the disinformation campaign on mail-in voter fraud

Mail-in voter fraud graph

A new report from Harvard Law School Professor Yochai Benkler ’94 and a team of researchers from the Berkman Klein Center for Internet & Society shows that the mail-in voting fraud disinformation campaign—intentionally spreading false information in order to deceive—is largely led by political elites and the mass media.

Trump doesn’t need Russian trolls to spread disinformation. The mainstream media does it for him.

Voting fraud, according to study after study, is rare. Mail-in ballots are, with a few exceptions, a safe way to vote. But millions of Americans have come to believe something radically different: They think the Nov. 3 election could very well end up being stolen. That the outcome — especially if it relies on counting the votes that come in later than in a normal election year — might well be illegitimate. Where would they get such an idea? Conventional wisdom might say it comes from false stories and memes spread on social media, originating from foreign troublemakers trying to influence the election results…Not so, says a major new study: It’s the American mainstream press that’s doing most of the dirty work. Eager to look neutral — and worried about being accused of lefty partisanship — mainstream news organizations across the political spectrum have bent over backward to aid and abet Trump’s disinformation campaign about voting by mail by blasting his false claims out in headlines, tweets and news alerts, according to the Berkman Klein Center for Internet and Society at Harvard University… “If Biden wins clearly by mail-in voting and not in-person voting, you may well have tens of millions of people persuaded that the election was stolen,” Yochai Benkler, the center’s co-director and a Harvard Law School professor, told me. And their outrage could translate into violence. The disinformation campaign “is transmitted primarily through mass media, including outlets on the center-left and in the mainstream,” Benkler said. In particular, it may be those outlets that try hardest to seem unbiased that are doing a lot of the heavy lifting, he said — in part because of their broad reach and their influence on less-partisan voters.

Continue Reading at Washington Post »

Simulating responses to election disinformation

In an effort to combat multiple potential vectors of attack on the 2020 U.S. election, two Berkman Klein Center affiliates have published a package of “tabletop exercises,” freely available to decisionmakers and the public to simulate realistic scenarios in which disinformation threatens to disrupt the 2020 election.

Will Trump Concede?

A podcast by Noah Feldman: Adam Przeworski, a politics professor at New York University and one of the world’s foremost scholars on democratic transitions, explains his worries about a peaceful transfer of power.

Continue Reading at Stitcher »

A new Electoral College nightmare: We may face a constitutional crisis if either candidate dies

Both of the two major parties’ presidential candidates are septuagenarians; one of them, former Vice President Joe Biden, was recently in close proximity to a group of coronavirus-positive people, while the other, President Donald Trump, has contracted COVID-19 and is currently in the most crucial phase of infection. The two men’s age, and their proximity to a disease that kills about 12% of those in their mid-70s and older, has prompted many outside observers and legal experts to be forced to confront the unthinkable: if President Donald Trump or former Vice President Joe Biden dies before Election Day — or after the election but before the Electoral College convenes — will America enter a constitutional crisis? … Harvard Law professor Laurence Tribe, when asked what might happen if Donald Trump were to pass before Election Day, warned that things could get messy. “The likeliest outcome of the death you’re imagining is that the Republican National Committee would convene in an emergency session,” and, utilizing the best legal advice available to them, would “decide how best to accommodate their respective deadlines for qualifying candidates, or more precisely the electoral slates committed to particular candidates, for the presidential election to be held this November 3,” Tribe said over email. This process would be complicated, of course, by the fact that millions of Americans have already voted by mail — and their ballots cannot be retroactively changed. To accommodate this, and since it would be “lunacy” to ask people to resubmit their ballots, “my hope would be that the state chapters of the RNC would all agree simply to revise the instructions given to the electors committed at that time to the Trump/Pence slate in each of those States so as to conform those instructions to whatever new ticket the RNC were to choose – say, [Vice President] Mike Pence and [former United Nations Ambassador] Nikki Haley.” Yet according to Tribe, that might not be the end of the matter. He noted that some electors could declare that they are only legally bound to support a Trump-Pence ticket and, if they do not want Pence to be president, resign rather than be compelled to cast their ballot for him.

Continue Reading at Salon »

Biden would face hurdles undoing Trump environmental rollbacks

Biden’s climate plan lays out actions he would take on Day One like implementing “aggressive” methane pollution limits from the oil and gas sector and developing “rigorous” fuel economy standards. Environmental advocates say the former vice president should target rules that have the biggest effects on climate change and those that are most harmful to marginalized communities. Yet because of complexities in the rulemaking process — along with structural changes implemented by the Trump administration — undoing even just some of Trump’s environmental rollbacks could take years…If a Biden administration must rely on the rulemaking process to undo Trump’s actions, it could set up a long battle and possible court challenges. Joseph Goffman, an Obama administration Environmental Protection Agency lawyer, said the rulemaking process usually takes 18 to 36 months. Goffman, now the executive director of Harvard Law’s Environmental and Energy Law Program, said it may be slightly quicker to undo rules that are still facing court challenges when Biden takes office since the new administration can choose not to defend them. However, he said, Biden administration rules could get tied up or halted in court, meaning implementation could take even longer. The Trump administration has taken or is in the process of carrying out changes that could further hamstring a Biden administration. It is changing how the benefits of emissions reductions are calculated, and it has proposed a rule aimed at changing what scientific studies are considered in rulemaking. “Some of these changes would require the successor administration to have to do more homework,” Goffman said.  “A lot of these changes would not ultimately stop a Democratic, pro-environment administration from taking the actions it wanted to take,” he said, though he acknowledged it would make it “more challenging.”

Continue Reading at The Hill »

What happens if a nominee dies shortly before or after the election? It’s complicated.

An op-ed by Jason Harrow and Lawrence LessigWhat would happen if a presidential candidate were to die close to an election? All of us should hope President Trump recovers quickly from covid-19, and that this difficult situation never arises. But the president’s illness underscores the reality that this outcome is within the realm of possibility — and that our existing election architecture needs fine-tuning to deal with it. This scenario arose when we argued Supreme Court cases last spring about the role of presidential electors. Based both on history and current state and federal law — including the Supreme Court’s decision in the so-called faithless-elector case, Chiafalo v. Washington— it’s not clear what would happen if a presidential candidate dies either shortly before Election Day or before the electoral college has gathered to ratify the election results. That dangerous ambiguity can be closed if states act quickly to make sensible modifications to their laws, and if the political parties and state officials in the remaining states commit to letting the electoral college carry out the will of the people, as the Supreme Court envisioned in Chiafalo. Many states have laws that, if read literally, would force presidential electors to cast votes for candidates who have won the state’s popular vote — even if the candidate were deceased. Take Colorado, whose law was before the Supreme Court. Colorado law says “each presidential elector shall vote for the presidential candidate . . . who received the highest number of votes” in the general election.

Continue Reading at Washington Post »

Should Big Tech Be Setting the Terms of Political Speech?

In the run up to the US presidential election on November 3, digital platforms are releasing a number of new or updated policies related to disinformation, election advertising and content moderation. We asked five experts if big tech should be setting the terms of political speech. And if it does, how might this ad hoc and disjointed approach to platform governance impact democracy? … Evelyn Douek, the Berkman Klein Center: “We are now firmly in a world of second or third or fourth bests. No one’s ideal plan is the current patchwork of hurriedly drafted policies written and enforced by unaccountable private actors with very little transparency or oversight. Nevertheless, here we are. So platforms should be as clear and open as possible about what they will do in the coming weeks and tie themselves to a mast. Comprehensive and detailed policies should not only be the basis for platform action but a shield for it, when inevitable charges of bias arise. Platforms have been talking tough on the need to remove misinformation about election integrity, and rightly so — it’s an area where relying on democratic accountability for false claims is especially inadequate, because the misinformation itself interferes with those accountability mechanisms. You can’t vote someone out if you’re scared or misled out of voting at all.” … Dipayan Ghosh, the Berkman Klein Center: “The political discourse is increasingly moving online, and particularly to dominant digital platforms like Facebook and YouTube — we know that. Internet companies have variously enforced new policies — such as Facebook’s new restrictions against certain hateful ads, and Google’s limitations on the micro-targeting of political ads. These are half-measures: they are not enough. Dominant digital platforms should be liable for facilitating the dissemination of political advertising at segmented voting audiences. In the absence of such a policy, we will never diminish the disinformation problem — let alone the slate of related negative externalities that have been generated by the business models at the core of the consumer internet.”

Continue Reading at Centre for International Governance Innovation »

High court in Trump mold could undercut key law for climate

President Trump might not win the November election, but he could still strip his opponent, Joe Biden, of a dominant tool to limit greenhouse gases. The Supreme Court and its reshaping by Trump, who is verging on his third appointment of an anti-regulatory justice, would be a warning to Biden to rely less on the Clean Air Act to reduce emissions of carbon dioxide and other gases. Expansive readings of the landmark environmental law — like the one EPA used to regulate the power sector under President Obama — are unlikely to pass muster with the court’s likely 6-3 conservative majority. That would be a problem for former Vice President Biden, who has offered the most ambitious climate change platform in the history of U.S. presidential elections…Joseph Goffman, executive director of Harvard University Law School’s Environmental and Energy Law Program and a former EPA official under Obama, said Biden’s environment agency would be forced to write legally conservative rules that nonetheless aim for aggressive emissions reductions. “If eventually it is challenged in court, the challenge won’t be about whether the agency had too expansive an interpretation of the law,” he said. “But would focus on technology issues where I think even a conservative judiciary would be likely to defer to the agency.” Goffman, who helped oversee the development of the Clean Power Plan, said it was too early to guess what ambitious inside-the-fence-line regulations would look like. “But it’s a little easier to speculate that the agency would look there first rather than to something that would be perceived by the court as an overly creative reading of the statutory language,” he said.

Continue Reading at E&E News »

To secure elections, paper ballots, risk-limiting audits and fighting misinformation are required: IU study

To secure elections, paper ballots and risk-limiting audits are needed and systems have to be established to contain the spread of misinformation, a recent Indiana University Bloomington study has found…Election security is discussed in two interconnected yet separate areas of research: the security of the system itself, like voting machines and tabulation systems, and digital repression, which includes misinformation on social media platforms…Beginning to follow other countries, the U.S. did create an information sharing and analysis center for election officials to share cyber threat information and best practices, Shackelford said. Abbey Stemler, an author of the study and a faculty associate at Harvard University’s Berkman Klein Center for Internet and Society, said academics, computer scientists and hacktivists – hackers who use their skills to bring about political and social change – should be apart of discussions on how to secure elections “to detect vulnerabilities.” “We need to figure out a way to solve that problem together, because when you have each jurisdiction trying to do the best they can we’re not enjoying the efficiencies of collective action and collective focus on the problem,” Stemler said. “We need computer scientists, hackers and other academics to be heard because they often feel ignored.”

Continue Reading at Chicago Tribune »

What if Trump Can’t Run? Many Steps Are Clear, but Some Are Not

President Trump’s positive coronavirus test has raised the possibility, however remote, that he could become incapacitated or potentially die in office if his symptoms worsen. While that outcome remains highly unlikely, and few in Washington were willing to discuss it on Friday, when Mr. Trump was taken to Walter Reed National Military Medical Center for treatment, the Constitution and Congress long ago put in place a plan of succession to ensure that the nation is protected from adversaries and internal conflict when the elected president cannot serve. The Constitution makes clear that the vice president is first in line to succeed the president should he or she die in office, and can step in to temporarily take on the duties of the presidency should the commander in chief become incapacitated. Vice President Mike Pence, 61, tested negative for the coronavirus on Friday…Some constitutional scholars have raised doubts about whether the speaker of the House and the president pro tempore of the Senate are eligible to step in for the president, arguing that the framers intended for only executive branch officials — an “officer” is the term in the Constitution — to qualify. Jack L. Goldsmith, a Harvard Law School professor, warned this year that the seemingly arcane dispute could cause a clash. It is possible, for instance, that Ms. Pelosi and Secretary of State Mike Pompeo, the next executive branch official in line, could make competing claims to the presidency. “These are all nightmare scenarios because these points of constitutional law have really never been tested,” Mr. Goldsmith said… “You think about ambiguity in the chains of command when we have adversaries around the world,” he said. “We could end up with some real issues and a government in effect adrift with some competing power players.”

Continue Reading at New York Times »

President Trump Tests Positive For The Coronavirus

We bring you live coverage of the developing news regarding President Donald Trump and First Lady Melania Trump testing positive for the coronavirus, and take your calls with our panel of experts. Guests: Shira Doron, infectious disease physician and hospital epidemiologist at Tufts Medical Center. Anthony Brooks, WBUR senior political reporter. Michael Curry, Deputy CEO & General Counsel of the Massachusetts League of Community Health Centers, former head of the Boston NAACP, and a member of the national NAACP Board of Directors. Nancy Gertner, WBUR legal analyst, retired federal judge, and senior lecturer at Harvard Law School. David Gergen, advisor to presidents Nixon, Ford, Reagan and Clinton, and founding director of the Center for Public Leadership at the Harvard Kennedy School.

Continue Reading at WBUR »

At least 33 states will ask voters to wear masks at polling stations

For Frances Smylie Brown, the upcoming presidential election will mark the fifth time she has worked the polls as an election judge in Denver. But with the novel coronavirus still lurking, she knows that this experience will be like no other. Preparations include a raft of increased safety protocols at polling sites, such as separating voters and judges with plexiglass separators, spacing outlines and disinfecting surfaces…Like Brown, election officials around the country are gearing up for the unique challenges of opening polling places during a global pandemic. Out of the 12 states ABC News did not receive information from, seven have a state-wide mask mandate in place. And 33 — plus Washington, D.C. — of the 39 states reached out to by ABC News confirmed that they plan to require or strongly recommend voters to wear face coverings. For them, one of the thorniest challenges has been figuring out what to do with voters who refuse…Some don’t agree that election officials are out of line when asking voters to mask up. Nicholas Stephanopoulos, an expert on election law and constitutional law and a professor at Harvard Law School, told ABC News he did not think it would be unconstitutional to turn away a voter who refused. “For challenges like these, the law asks how heavy is the policy’s burden on voting?” he said. “Here, the burden on voting is trivial; it’s perfectly easy to cast a ballot while wearing a mask.”

Continue Reading at ABC News »

Could Trump steal the election? Here’s one way to find out.

The disastrous debate that unfolded in Ohio should prompt us to take the possibility that President Trump will try to steal the election far more seriously — even as it also renders that outcome much less likely to succeed. Trump exhorted his far-right army to mobilize for a sustained conflict over the election results. He refused to say whether he’d accept a legitimate loss. And he confirmed he’s expecting the Supreme Court to help invalidate countless legally cast ballots…The short version is this. At Amy Coney Barrett’s confirmation hearing, Democrats can press a line of questioning that might illuminate whether Trump can pull off one of his most-discussed means for rigging the election: getting a GOP state legislature to appoint substitute pro-Trump electors to the electoral college, regardless of the popular vote in that state…Could this work? To be clear, it shouldn’t. The Constitution does assign to each state the authority to “appoint” its electors, in a “manner” that the legislature “may direct.” But in a terrific piece, three legal scholars — Grace Brosofsky, Michael Dorf and Laurence Tribe — explain that precedent shows this means the legislature must “direct” how the state appoints its electors by making laws that create and define the process for doing so. Virtually all states have made laws that provide for electors to be appointed in accordance with the popular vote outcome in them. (Maine and Nebraska do this by congressional district.) Thus, those scholars argue, legislatures can’t appoint pro-Trump electors without making a new law providing for appointment of electors based on legislators’ own will, not that of the voters.

Continue Reading at Washington Post »

Disinformation, QAnon efforts targeting Latino voters ramp up ahead of presidential election

Disinformation targeting Latino communities is ramping up ahead of Election Day, when the demographic is expected to play a crucial role in key battleground states. Advocacy groups and election security experts alike say material is circulating on social media platforms and online messaging apps that pushes false conspiracies that echo larger disinformation campaigns in English. The misinformation efforts, some of which reflect the QAnon conspiracy theory, are especially critical in Florida, a crucial swing state where polls show Democratic presidential nominee Joe Biden is running behind Hillary Clinton’s 2016 support among Latino voters. Advocates said the misinformation could dissuade Latino voters, who have historically low levels of voter participation, from voting in this year’s election…Oumou Ly, a staff fellow at Harvard’s Berkman Klein Center, said foreign actors are likely propping up these narratives. Officials have warned against similar foreign interference efforts from four years ago heading into the 2020 election. FBI Director Christopher Wray told a House panel last week that Russia is seeking to denigrate Biden’s campaign through social media interference. Much of the disinformation targeting Latino voters has the intent to dissuade their participation in the election, advocates said, including pushing unsubstantiated claims that vote by mail is not secure or the election system can be hacked. The disinformation is targeting Latino voters beyond Florida.

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Election and Supreme Court Fight Will Decide Trump’s Environmental Legacy

President Trump has initiated the most aggressive environmental deregulation agenda in modern history, but as his first term drives to a close, many of his policies are being cut down by the courts — even by Republican-appointed jurists who the administration had hoped would be friendly. Those losses have actually heightened the stakes in the election and the fight over a replacement on the Supreme Court for Justice Ruth Bader Ginsburg: A second term, coupled with a 6-3 conservative majority on the high court, could save some of his biggest environmental rollbacks. Since January courts have dealt a series of blows to the Trump administration’s plans to ramp up fossil fuel development and undo decades of environmental protections. This month, a federal appeals court temporarily blocked implementation of a major rollback of methane emissions standards for the oil and gas industry while it considers permanent action… if Joseph R. Biden Jr. gets into the White House in January, he will have to provide a written explanation of the reasons he wants to roll back each Trump administration action. Eliminating Trump’s executive orders will be relatively easy, but going through the regulatory process all over again on issues like fuel efficiency…James E. Tierney, a former Maine attorney general who now teaches courses at Harvard Law School on the role of attorneys general, said that they are “institutionally designed to be independent watchdogs, independent brakes on power.” Their relative independence from executive power, whether in their own state or the federal government, goes back to the thirteen original colonies, and, before that, English common law. “If there’s a Democratic president, roll up your sleeves and wait for Texas to file lawsuits against President Biden,” he said.

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What The US Needs To Do To Secure Election 2020

With just over two months before the 2020 election, intelligence officers in the US have warned that Russia and other rivals are again attempting to undermine the nation’s democracy. But these concerns over election security extend far beyond safeguarding insecure voting machines and questions about voting by mail in the United States. Based on an analysis of election reforms in Australia and European Union nations, the researchers outline steps to address election infrastructure security—such as requiring paper ballots and risk-limiting audits—as well as deeper structural interventions to limit the spread of misinformation and combat digital repression…Aside from appropriating sufficient funds to replace outdated voting machines and tabulation systems, the researchers say that Congress should encourage states to refuse to fund voting machines with paperless ballots. The researchers also suggest requiring risk-limiting audits, which use statistical samples of paper ballots to verify official election results… “The international community has the tools to act and hold accountable those actors that would threaten democratic institutions,” says Abbey Stemler, assistant professor of business law and ethics, who also is a faculty associate at Harvard University’s Berkman Klein Center for Internet and Society. “Failing the political will to act, pressure from consumer groups and civil society will continue to mount on tech firms, in particular Facebook, which may be sufficient for them to voluntarily expand their efforts in the EU globally, the same way that more firms are beginning to comply with its General Data Protection Regulation globally, as opposed to designing new information systems for each jurisdiction.”

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Biden’s Day 1 Assignment: Order the Government to Follow Science

An article by Cass Sunstein: Imagine, if you would, that it is Jan. 21, 2021, and that Joe Biden is president of the United States. The nation awaits his first executive order — a formal presidential decree, binding on the executive branch, that directs departments and agencies what to do. At 9 a.m., the executive order appears. Its name? “Scientific Integrity.” Here are its opening words: “Science and the scientific process must inform and guide decisions of my Administration on a wide range of issues, including improvement of public health, protection of the environment, increased efficiency in the use of energy and other resources, mitigation of the threat of climate change, and protection of national security.” It continues: “The public must be able to trust the science and scientific process informing public policy decisions. Political officials should not suppress or alter scientific or technological findings and conclusions. If scientific and technological information is developed and used by the Federal Government, it should ordinarily be made available to the public.” But that’s just the start. President Biden’s order gives unprecedented authority to the director of a relatively obscure White House office, the Office of Science and Technology Policy, to make scientific integrity real. It requires federal agencies to put new procedures in place, designed “to identify and address instances in which the scientific process or the integrity of scientific and technological information may be compromised.” To ensure that political leaders do not politicize science, it calls for protection of whistle-blowers.

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Trump Gutted the Department of Justice. Biden Can Restore It.

An article by Noah FeldmanIt’s too soon to say with any confidence that Joe Biden will be the next president of United States. But it’s not too soon to start determining what he needs to do on day one if he is elected. Once you get beyond addressing the coronavirus pandemic, it’s pretty clear that the highest priority Biden should have is reversing the disastrous direction that the Department of Justice has taken under President Donald Trump. To regain its credibility, the department needs leaders who will publicly and systematically demonstrate that they are committed to restoring the values, norms and practices established in the nearly half-century since Watergate. The near-total failure of the Justice Department to engage the pressing concerns raised by the Black Lives Matter protesters is only the most recent and dramatic manifestation of how rudderless the once-great department has become. Looking at the violent clashes between federal agents and protesters this summer, you would hardly know that the Department of Justice once worked to desegregate schools and prosecute civil rights violations in the South. Trump’s Department of Justice has taken its cues from a president who ran for office by directing the “lock her up” chant at his opponent. It has increasingly undermined the all-important principle that enforcement, investigation and prosecution should be removed from partisan politics. Trump’s project of delegitimizing the department through politicking goes back to his extended efforts to paint the Russia investigation as politically motivated. His goal was to convince ordinary people that the FBI and DoJ were already completely partisan, in order to undercut any evidence implicating him or his campaign. Hence Trump’s pressure on Attorney General Bill Barr to break Department of Justice norms and reveal the progress of his investigation of the Russia investigation. The very existence of this investigation is a terrible sign of how Trump has successfully turned the initial investigation of Russian interference in the 2016 election into a political football.

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Worried About a Disputed Election? Steel Yourself

An article by Cass SunsteinSuppose that on Nov. 3, and for weeks thereafter, no one knows whether Donald Trump or Joe Biden has won the presidential election. To be more specific, suppose that as of Nov. 4, Trump is unquestionably ahead in the key states — say, Michigan, Wisconsin and Pennsylvania. But suppose, too, that as those states count absentee and mail-in ballots, it becomes clear that Biden has won. Predictably, Trump alleges fraud — and tweets that his supporters, and the country as a whole, should not allow “THE GREATEST FRAUD IN HISTORY.” Everything will ultimately turn on the vote of the Electoral College, scheduled for Dec. 14, and on what happens on Jan. 6, when Congress meets to declare the winner. But if we have a fierce dispute in late November and early December, how on earth do we get to a final decision in early January? The Electoral Count Act of 1887 was designed to answer that question. In my first column on this issue, I described what the ECA requires in the event of contested elections, and explained what the law is clear about. By giving the major authority to the states, and by outlining, step by step, what is supposed to happen, it sharply limits room for political maneuvering in Washington. Unfortunately, the act also leaves some important questions unresolved. A leading political scientist of the late 19th century even described it as “very confused, almost unintelligible.” That’s too harsh. But exactly how would the law handle an objection, by Trump and his campaign, that the election was “rigged” and that mail-in voting resulted in rampant fraud? The first question, and the most fundamental, is whether the act is constitutional. Many people think that it isn’t, and the Supreme Court has never ruled one way or another.

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Congress should warn Trump’s lawbreakers that there will be consequences

With about two months to go until Election Day, President Trump has abandoned any pretense of following, let alone enforcing, the laws he has sworn to uphold. He directed government employees to assist him in putting on a political extravaganza at the White House. His secretary of state dialed in from Jerusalem for a purely political role as Trump’s cheerleader at the Republican National Convention, in violation of both the Hatch Act and his own departmental guidelines. Trump instructed his director of national intelligence to refuse to brief members of Congress in person on efforts to disrupt the 2020 election, a choice House Speaker Nancy Pelosi (D-Calif.) and House Intelligence Committee Chairman Rep. Adam B. Schiff (D-Calif.) declared “a shocking abdication of its lawful responsibility to keep the Congress currently informed, and a betrayal of the public’s right to know how foreign powers are trying to subvert our democracy.” And Postmaster General Louis DeJoy has instituted measures that have slowed the mail, even as more Americans will rely on the Postal Service to cast their ballots. The way to handle Trump is to beat him at the polls. But what about the aides who participate in illegal activities or block Congress from performing oversight? … “It’s well past time for Congress to lose its subpoena inhibitions, now that the Roberts court has unanimously rejected the administration’s claims of absolute presidential immunity in a ringing reaffirmation of the principle that no executive official is above the law,” says constitutional scholar Laurence Tribe. “The White House participants who engaged in flagrant Hatch Act violations should all be held in contempt if they defy facially valid congressional subpoenas, and there’s no legitimate basis for the new administration to give such participants a bye just because the president personally isn’t covered by the Hatch Act.”

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TV Ratings for Biden and Trump Signal an Increasingly Polarized Nation

Americans who watched the political conventions on television opted for news networks with partisan fan bases to a degree unseen in recent years, another sign of an increasingly divided electorate as the nation hurtles toward the November election…Television viewers’ turn to perceived safe spaces raises questions about the ability of political conventions — which reached a broader TV audience in the pre-internet era — to persuade undecided voters. And it underscores fears about a polarized information environment where Americans can receive little exposure to political ideas that run counter to their own…On MSNBC, three Trump critics — Rachel Maddow, Joy Reid and Nicolle Wallace — lambasted the president’s address and interrupted the convention for several fact-checking segments. The channel’s ratings for the Republican convention were among its lowest prime-time weeks of the year. For the Democratic convention, the picture was sharply reversed. MSNBC clocked its highest-rated prime-time week in the network’s 24-year history, with a 10 p.m. average of 5.7 million viewers. Fox News’s viewership fell far below its usual prime-time average. “What we saw in the last presidential election was that Clinton supporters distributed their attention much more evenly among a broader range of outlets, and Trump supporters concentrated much more heavily on Fox News,” said Yochai Benkler, a co-director of the Berkman Klein Center for Internet and Society at Harvard Law School. “The fact you have such a high proportion of viewers of the Democratic convention on MSNBC does suggest, to some extent, a gravitation on the Democratic side toward a more partisan, viewpoint-reinforcing network,” Mr. Benkler said.

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Responding to a Contested Election, Step by Step

An article by Cass Sunstein: After Nov. 3 — Election Day — there is a chance of constitutional chaos. It could take the form of acute uncertainty, not only about who won the election but also about the process by which that question will be settled. We might have a perfect storm: close contests in key states, issues with mail-in voting, allegations of voter suppression and fraud, and an incumbent president who is unwilling to accept a loss (and who is already paving the way toward contesting the results as “rigged”). To see the problem, it is essential to understand that Nov. 3 is only the first of three defining days. The second is Dec. 14, when members of the Electoral College cast their votes. The third is Jan. 6, 2021, when Congress meets in joint session to declare the winner. What happens on Nov. 3 is almost always enough to decide the presidential election. That isn’t because victory goes to the candidate with the most votes nationally, but because the popular vote, within the states, settles the outcome in the Electoral College. In nearly every state, the candidate who receives the most votes statewide is entitled to the vote of all of the state’s electors. Suppose, for example, that President Donald Trump receives 47.3% of the vote in Ohio, and that former Vice President Joe Biden receives 47.2% of the vote there. All of Ohio’s 18 electoral votes would be allocated to Trump. But what if we don’t know on Nov. 3, or even a month later, who won Ohio? Or Wisconsin, Michigan, Pennsylvania and Florida? What if it takes a long time to count the votes, and what if the results are disputed?

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Can the Post Office Handle the Election?

A podcast by Noah Feldman: Elaine Kamarck, a senior fellow at the Brookings Institution who studies the post office and electoral politics, discusses whether the agency can handle a pandemic election.

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VERIFY: Fact-checking speeches from final night of Democratic National Convention

The VERIFY team fact-checked what Joe Biden and other speakers said during the final night of the DNC. …  Claim:  Biden said “He’s (President Donald Trump) proposing to eliminate a tax that pays for almost half of Social Security without any way of making up for that lost revenue.” Biden was likely referring to the […]

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Bloomberg ‘Balance of Power’

“Bloomberg: Balance of Power” focuses on the intersection of politics and global business. A preview of night 3 of the Democratic National Convention, as vice presidential nominee Kamala Harris takes the stage. Guests: Rep. Joyce Beatty, National Urban League CEO Marc Morial, Harvard Law Professor Cass Sunstein, Pattern Energy CEO Mike Garland.

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How to Block Foreign Subversion of U.S. Elections

An op-ed by Cass Sunstein: In the near future, Congress should create a Commission on Electoral Integrity, with only one task: protecting the U.S. from foreign interference in its elections. That is the unmistakable lesson of Volume 5 of the Senate’s Select Committee on Intelligence report on “Russian Active Measures Campaigns and Interference in the 2016 Election.” Put to one side your own political convictions. Don’t ask whether members of Donald Trump’s campaign worked in concert with Russian officials to turn the election to him.

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Florida voters must be climate voters in 2020

An article by William McConnell ’22Florida is one of the epicenters of the climate crisis already raging in the United States and, unless Florida voters do something about it, the situation will only get worse. Climate change is making hurricanes stronger. Although Palm Beach County dodged Hurricane Isaias, more hurricanes will follow, and we will not always be lucky. With stronger hurricanes and storms, flooding is now commonplace and will become even more destructive in the coming years. Soon, Florida could experience as many as 105 days with a heat index over 100 degrees. These heat waves will kill — yes, kill — seniors and destroy agriculture. And, as climate change ravages Central American and Caribbean countries, Florida will become the destination for thousands of climate refugees. These are not the predictions of alarmists. This is the consensus of scientists, the U.S. military, Florida state and federal officials, and the same companies that are at the center of America’s carbon footprint. It is clear that one presidential campaign is serious about stopping the climate crisis and the other is not. President Trump, whose campaign is funded by fossil fuel money, neither understands nor cares about the risk to Florida’s seniors and younger generations. His administration has ignored investment in clean infrastructure and disintegrated America’s global leadership in addressing the crisis. The U.S. once pressured China, India and other polluting countries to reduce their carbon emissions, but now we are silent, floundering in the backwash, as other countries shape the new green economy. But President Trump’s mistakes do not have to be our own.

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Trump Is Abusing His Power Again

An article by Noah FeldmanPresident Donald Trump is pressuring Attorney General William Barr to announce the results of the ongoing Russia probe, which would violate Department of Justice guidelines designed to prevent the department from influencing elections. Of course, influencing the election is exactly what Trump wants Barr to do. Trump is once again using the unique power of the presidency to gain an unfair advantage in the 2020 election. The pattern is by now eerily familiar. It’s the same impulse manifest in Trump’s undermining of the U.S. Postal Service at just the moment it faces the responsibility of handling a surge of mail-in ballots. And it’s identical to the conduct for which Trump was impeached by the House of Representatives. Although it may seem like eons ago, it was only last December that Trump was impeached for abusing the power of the presidency to distort the 2020 election by harming the candidacy of Joe Biden. That was, the House determined, the purpose of Trump’s call to Ukrainian president Volodymyr Zelenskiy. And in Trump’s Senate trial, which ended with Republicans declining to remove him from office, the president’s supporters all but admitted to the pattern. As you’ll remember, their main defense was not that the president hadn’t used his office to try to gain an advantage, but that even if he had, the abuse of power didn’t count as an impeachable offense. The latest Barr affair is about as explicit an abuse of presidential power as you can imagine. Long-standing Department of Justice guidelines issued under the authority of the attorney general say explicitly that “politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.” The guidelines are implemented via a norm that the department should not make disclosures about politically sensitive investigations in the 60 days before an election.

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The Bush-Gore Recount Is an Omen for 2020

Twenty years ago this fall, the United States was plunged into 36 days of turmoil as lawyers, judges, political operatives, and election workers grappled with the uncertain result of the presidential contest in Florida. Whoever won the state would win the presidency. In the end, after start-and-stop recounts and the intervention of courts at every level, Texas Governor George W. Bush, the Republican candidate, was declared the victor, edging out Vice President Al Gore, the Democrat. The story of the 2000 Florida recount offers a reminder of just how chaotic the electoral process can become—and of how disarray in a single state can undermine faith in the democratic process nationwide…The account here, drawn from interviews with more than 40 people with firsthand experience of the Florida-recount saga, is both a history and a warning…On Friday, November 24, the U.S. Supreme Court agreed to review the Florida Supreme Court’s ruling in favor of Gore. Two days later, on Sunday night, Katherine Harris certified the vote tally in Florida, and Bush’s lead stood at 537 votes. Some recount results were excluded—the results from Palm Beach County had arrived two hours late. Miami-Dade had stopped its recount. Laurence Tribe (Gore lawyer): Ron Klain called, and he said, “We really need help. It looks like there is an issue about federal-court intervention with the electoral recount, and we need you to fly down to Florida immediately.” The question of whether, as a matter of federalism, this is an appropriate intervention was very much up in the air. The next morning, I appeared in federal court, and I remember arguing that it was inappropriate for a federal court to intervene at this point. If there were any constitutional issues about the recount, they could be properly handled at the state level and in the state court.

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The 10 Scariest Election Scenarios, Ranked

As the election nears, anxieties are growing over the possibility that President Donald Trump will try to cling to power if he loses to former Vice President Joe Biden. Trump, for his part, is strongly hinting he will not accept any loss as a legitimate result. On Thursday, the president said that he’s deliberately blocking funding to the United States Postal Service in order to prevent people from voting by mail in the midst of the pandemic, which he claims, without evidence, will result in mass fraud…All this has led many Americans to wonder: What can proponents of democracy do to prevent a stolen election? …Mark Tushnet, professor of Law at Harvard Law School, warns that results on election night may be misleading due to a close race and the slow counting of mail-in ballots. In 2018, late-counted mail-in ballots after Election Day caused a “blue shift” that understated the depth of the Democratic victory on election night. Trump could take advantage of this delay, aided by overeager—or friendly—media outlets. Tushnet writes: “ ‘Close’ and ‘slow’ are concepts that will be developed on the fly, and with an eye to electoral advantage, but my current version is that margins of around 10,000 votes or fewer will be [construed] to be close. And what counts as slow will depend in part upon whether states provide interim updates from election-night reported outcomes.” Countermeasures: “Immediate popular mobilizations in the form of street demonstrations near but not in the venues where mail-in ballots are being counted (so not the ‘Brooks Brothers’ Republican riot from 2000), with the theme ‘Count every vote.’” Likelihood: This scenario depends on the race tightening in the weeks ahead, the difficulty of counting mail-in ballots, and willingness of the GOP to weaponize an indecisive election night outcome against democracy. Which is to say, it is highly plausible.

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Trump will almost certainly challenge the results if he loses — here’s how that could play out

As he did in 2016, Donald Trump is constantly claiming that if he loses in November it will be proof that the vote was rigged against him. He tweets regularly, contrary to the available evidence, that mail-in voting will lead to massive amounts of voter fraud when such fraud hasn’t been a significant problem in any presidential election in modern history. Because Trump seems unlikely to accept the results of the vote if he loses, there is widespread speculation that Trump’s will litigate every ballot it can. But Jessica Levinson, a law professor at Loyola Marymount University, tells AlterNet that the Trump campaign might not have to file a challenge itself, as his supporters might claim that they had been disenfranchised by some sort of fictitious scheme to “rig” the vote…And Nicholas Stephanopoulos, a law professor at Harvard University, tells AlterNet that he can imagine a scenario where the Democrats are the ones suing over election results. “One bad scenario is that a swing state’s election is close and that many mail-in ballots — enough to maybe change the result of the election — arrive too late to be counted because of deliberate delays by the post office,” Stephanopoulos says. “The disadvantaged side (probably Democrats) would then sue, arguing that the mail-in voters’ right to vote was burdened by the post office delays and by the state’s policy of not counting late-arrived ballots.” Stephanopoulos says he expects that the current Supreme Court would be “hostile to this claim despite its normative appeal.” He says the Court has never ruled in favor of a voting rights plaintiff, and it “would be unlikely to start when its decision might benefit a Democrat and when it could plausibly deny the claim.”

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Kamala Harris Is Eligible to Be VP. Shout It From the Roof.

An article by Noah Feldman: The theory that Kamala Harris is ineligible to be vice president because her parents were not U.S. citizens is xenophobic and false. But it’s not exactly the same as the birther conspiracy theory that said President Barack Obama wasn’t born in the United States at all. Birtherism was a conspiracy theory based on a factual lie. Even debunking that kind of theory can be a bad idea because it tends to help the falsehood reach more people — some of whom then believe the lie. The anti-Harris theory, in contrast, is based on a fringe constitutional claim about the meaning of the words of the 14th Amendment. When it comes to constitutional claims, even extreme ones, it’s important to explain why they are wrong in order to refute them. It’s therefore both valuable and necessary to explain carefully why this theory is incorrect as a matter of constitutional law. To do that, you need to start with the theory itself. It starts with the constitutional provision of Article II that says, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” (To be vice president, you have to meet the eligibility requirements to be president.) According to the attack theory, the meaning of “natural born” should be derived from the 14th amendment, which says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The attack on Harris’s eligibility focuses on the words “subject to the jurisdiction thereof.” The basic idea is supposed to be that those words modify the words “born in … the United States.” The theory asserts that children of non-citizens aren’t subject to the jurisdiction of the U.S. If that is so, runs the argument, they aren’t citizens.

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Fact check: Kamala Harris is a natural-born U.S. citizen and eligible to serve as president

A post on Facebook claims Sen. Kamala Harris, D-Calif., cannot serve as president because of her parents’ citizenship…Harris is a citizen of the United States and has been since birth. She was born in Oakland, California, on Oct. 20, 1964, according to Encyclopedia Britannica. Her parents were both immigrants — her father from Jamaica and her mother from India. By virtue of her birth in California, Harris is a natural-born U.S. citizen. The Citizenship Clause of the 14th Amendment provides that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” And that’s not dependent on their parents’ citizenship. “Anyone born on U.S. soil and subject to its jurisdiction is a natural born citizen, regardless of parental citizenship,” according to the Cornell Legal Information Institute. Parental citizenship is relevant to an individual’s citizenship status only if the individual is born outside of the United States…When Harris ran for president, similar claims about her citizenship and eligibility circulated online. At the time, Laurence Tribe, a professor of constitutional law at Harvard Law School, condemned the notion. “I can’t believe people are making this idiotic comment,” Tribe told the Associated Press in 2019. “She is a natural born citizen and there is no question about her eligibility to run.”

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Trump Encourages Racist Conspiracy Theory About Kamala Harris

President Trump on Thursday encouraged a racist conspiracy theory that is rampant among some of his followers: that Senator Kamala Harris, the presumptive Democratic vice-presidential nominee born in California, was not eligible for the vice presidency or presidency because her parents were immigrants. That assertion is false. Ms. Harris is eligible to serve. Mr. Trump, speaking to reporters on Thursday, nevertheless pushed forward with the attack, reminiscent of the lie he perpetrated for years that President Barack Obama was born in Kenya…Mr. Trump appeared to be referring to a widely discredited op-ed article published in Newsweek by John C. Eastman, a conservative lawyer who has long argued that the United States Constitution does not grant birthright citizenship. Ms. Harris, the daughter of Jamaican and Indian immigrants, was born in 1964 in Oakland, Calif., several years after her parents arrived in the United States…In an interview on Thursday, Laurence H. Tribe, a professor of constitutional law at Harvard Law School, compared Mr. Eastman’s idea to the “flat earth theory” and called it “total B.S.” “I hadn’t wanted to comment on this because it’s such an idiotic theory,” Mr. Tribe said, “There is nothing to it.” Mr. Tribe pointed out that the theory still quickly landed in the hands of a president who has used his pulpit to spread a number of conspiracies against his political enemies, particularly those who do not have white or European backgrounds.

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Inside Joe Biden’s race of a lifetime

It was late afternoon on February 2, the eve of the Iowa caucuses. We were jammed into a high-school gymnasium in Des Moines, the state capital, for Joe Biden’s closing rally. No one thought he would win the primary season’s talismanic opening contest the following day. Nor was he expected to come close to beating Bernie Sanders, the socialist Vermonter, in New Hampshire the next week. Though he was still ahead in the national polls, the 77-year-old former vice-president was treated as yesterday’s news…Should he make it to the White House, Biden would have completed the longest marathon in US political history. No other serious figure has tried this long to make it over the finishing line in recent history. A majority of Americans were not born when Biden first entered national politics. At 30, he was the fifth youngest senator in the country’s history after he won office in 1972. Biden’s 48-year political career is older than John F Kennedy, Bill Clinton and Barack Obama when they were elected…In another cycle, Biden’s lachrymosity might have been an albatross. During coronavirus, his emotional antennae look like a virtue. More than 165,000 Americans have now died in the pandemic. That toll is likely to be approaching a quarter of a million by early November. Trump’s inability to express condolences for America’s grieving families could not be further apart from Biden’s. In 2016, anger was the dominant political emotion. In 2020, it feels more like sadness. “If Trump were matter, then Biden is anti-matter — their characters are opposites,” says Laurence Tribe, a ­Harvard law professor who has been advising Biden on ­constitutional matters since the mid-1980s.

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One Tough Question For DOJ If Biden Is Elected: Whether To Prosecute Trump

If Joe Biden wins the presidency, his Justice Department will face a decision with huge legal and political implications: whether to investigate and prosecute President Trump. So far, the candidate is approaching that question very carefully…Based on those remarks, Biden seems to be on the way to adopting the position of former President Barack Obama. Back in 2009, the newly elected Obama said he didn’t want to get hung up on prosecuting wrongdoers. He was referring to people who had engaged in torture and warrantless wiretapping during the previous administration. Instead, Obama told ABC News at the time, his instinct was to make sure those practices never happened again. “I don’t believe that anybody is above the law,” he said, “On the other hand, I also have a belief that we need to look forward, as opposed to looking backwards.” …”It’s not at all clear that looking forward and not looking backward is an available option,” Harvard Law School Professor Jack Goldsmith said. Goldsmith said most people aren’t talking about how a Biden Justice Department might handle Trump but said he thinks they should be…But the Justice Department twice has opined that prosecutors can’t seek an indictment against a sitting president. That’s left open the question about whether he might face prosecution once he leaves office. It’s never happened before, and it’s a political time bomb. Bringing a criminal case against a former president could widen the divide in the country. “Whether that’s good for the country is a very hard question that’s going to be very messy,” Goldsmith said. “Whether it’s good for the Biden administration, whether it wants to be, you know, absorbed in being the first administration to ever prosecute a prior president — those are very hard questions.”

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Meet Joe Biden’s Likeliest Picks for the Supreme Court

An article by Noah FeldmanJoe Biden has fulfilled his promise to choose a woman as his running mate. Let’s turn our attention to another promise he made: to name a Black woman to the Supreme Court. A number of women with different kinds of legal experience have been suggested by NGOs and journalists. But to legal insiders, Biden’s options narrow down very quickly to two names: Justice Leondra Kruger of the California Supreme Court, and Judge Ketanji Brown Jackson of the federal district court in Washington, D.C. Both are extremely accomplished, with gold-plated resumes that are reminiscent of the justices picked by President Barack Obama, and for that matter by President Donald Trump. Both are also super-smart and well-liked. And realistically, they are the only two Black women who are young enough to serve for the long haul and have the relevant judicial experience to make their confirmation straightforward, even boring — which is just what a nominating president wants. To be clear, there are many more than two Black women qualified to sit on the court. They include legal activists, law professors, judges and government officials with experience at all levels. And in prior decades, it wasn’t unheard of for justices to come from the Senate, the cabinet, or even private corporate law firms. They didn’t all have fancy educational backgrounds, either. But that’s changed in recent years, partly as a product of bruising confirmation battles and partly as an effect of elite consensus on what a nominee’s record should look like. Today’s nominees tend to have attended an Ivy League law school; clerked for a Supreme Court justice themselves; and served as a high-level judge by a relatively young age. That’s one reason the possible Biden nominees are, in reality, so few. There are just not that many Black women who both fit that incredibly narrow mold. With a Democratic Senate — likely the only way Biden could get any nominee confirmed — Biden could try to change the norms and push through someone with a different resume. Yet that sort of risk-taking seems unlikely from Biden, who has just made his VP pick according to the most conventional of conventional wisdom.

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Trump Has Launched a Three-Pronged Attack on the Election

An article by Laurence H. Tribe, Jennifer Taub, and Joshua A. Geltzer: As President Donald Trump reflects on his sinking approval ratings and grows more desperate by the day, he’s been floating a dictator’s dream: postponing the November election. Even Senate Majority Leader Mitch McConnell and other Trump loyalists, including the Federalist Society co-founder Steven Calabresi, swiftly rejected this authoritarian fantasy. So Trump has retreated to a fallback position: casting doubt on the legitimacy of any election he doesn’t win. That starts by inventing fables about how voting by mail invites massive fraud and interminable delay—except, Trump now tells us, in Florida, where Trump’s elderly supporters will surely rely on it. Trump’s attack on voting by mail has several fronts, but one is by far the most serious: his attempt to slow down mail service, perhaps in a targeted way, while also insisting that only ballots counted on November 3 are valid. In addition to casting doubt on the entire election, another purpose of this scheme is to engineer a scenario in which Trump can pressure Republican-controlled legislatures to ignore the popular vote in their Democratic-leaning swing state (think Michigan, Pennsylvania, and Wisconsin) and instead select an Electoral College slate that supports him. Trump’s attempt to cut short the counting of valid votes is flatly contrary to constitutional law and federal statutes. Even so, states can and should do more to protect American’s mailed-in votes. States should immediately enact new legislation or take other legal steps clarifying that they intend for Congress to honor electors they choose, and that they may need a bit of time to finalize choosing them—ideally doing so by December 23 and no later than January 6, 2021, when Congress meets in special session to certify the election results. Through state-level action, Trump’s efforts can be neutralized.

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Can Judicial Independence Outlast Four More Years of Trump?

An article by Noah FeldmanIn nearly four years in office, President Donald Trump has challenged the independence of the judicial branch more than any other president. He’s accused judges of being “Obama judges” or “Mexican judges.” When he’s been investigated for corruption or obstruction of justice, he’s routinely portrayed himself as above the law. He’s directed his administration to issue a spate of unlawful executive orders. With the November election looming, it’s a good time to ask: Can the legitimacy of the federal judiciary survive another four years of this president? There are reasons to hope that it could. Although Trump has named numerous district court and appellate judges and two Supreme Court justices, the courts have nevertheless mostly held the line against his efforts to subvert the rule of law. Indeed, in the recent Supreme Court term, the justices did better than that. Majorities blocked Trump from rescinding DACA and held that the New York district attorney could subpoena his business records. The verdict on the courts’ ability to maintain independence over the last four years is mainly positive. Yet there are also reasons to worry. If Trump is given another four years and a Republican Senate, he will get to name a lot more lower court judges. And barring a medical miracle, he would very likely get to replace Justice Ruth Bader Ginsburg, who is 87 and suffering from a recurrence of cancer. He might even get a chance to nominate a successor to Justice Stephen Breyer, now 81.

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Laurence Tribe says if a 2020 result isn’t decided by January 20, Pelosi will be president

President Trump seems determined to sow confusion and chaos ahead of the 2020 election. Laurence Tribe says the president is trying to make the election ‘look chaotic’ and mentions a ‘fail safe’: President Nancy Pelosi.

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Trump’s tweet about delaying the election is just the beginning of a much more dangerous plan

If you ask a Joe Biden supporter to describe the former Vice President’s positive attributes, you’ll hear a lot about compassion, empathy, and experience. But after today, some might be tempted to add soothsaying to the list. Shortly after the Commerce Department announced that the pandemic-driven economic crisis had taken a 32.9 percent bite out of America’s annualised Gross Domestic Product, Donald Trump turned his presumptive Democratic opponent into a prophet Thursday morning by way of a single tweet. After making the baseless claim that states’ use of vote-by-mail will make November’s election (which he is losing according to most reputable polls) will be “the most inaccurate and fraudulent” vote in American history and “a great embarrassment,” Trump suggested delaying it “until people can properly, securely and safely vote”…But according to the man who taught Raskin constitutional law at Harvard Law School, an attempt by Trump to delay the November election is not the nightmare scenario Democrats need to worry about. “He must know — or even though he’s personally very ignorant, his lawyers must know — that three US code chapter one, which sets the date for the election, can be changed only by Congress,” said Harvard Emeritus Professor Laurence Tribe, author of the seminal law school text on the constitution, American Constitutional Law. Tribe posited that because only Congress can change the date of the election, Trump is positioning himself to blame the Democratic-controlled House of Representatives and Speaker Nancy Pelosi for making it impossible to pass any sort of measure to carry out his demand, and to pressure Republican-controlled state legislatures to nullify the results should he lose in states like Pennsylvania, Wisconsin, or Michigan.

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Democracy Is the Loser of Trump’s Vote-Delay Ploy

An article by Cass SunsteinWhat once seemed a paranoid fantasy is now looking plausible: Well behind in the polls, President Donald Trump is suggesting a possible delay in the 2020 election. Here’s what he tweeted on Thursday: “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???” There are major ironies here. Trump has repeatedly downplayed the coronavirus pandemic and called for rapid opening of cities, businesses and schools. Now he is fearful that people cannot “safely vote,” and wants to delay the election? A key reason that Trump is doing so poorly in the polls is his response to the pandemic, which is widely regarded as an abysmal failure. Now he wants to use the pandemic as a justification for stopping the ordinary operation of the democratic process? To be sure, Trump’s stated concern is with mail-in voting, which, in his view, is a recipe for fraud. But existing evidence does not support that concern. It is difficult to avoid the conclusion that Trump’s opposition to mail-in voting, and his interest in delaying the election, are a product of one concern: It looks as if he is going to lose. Fortunately, the president is not a king, and he can’t delay an election simply because he doesn’t want one. The Constitution gives the relevant power to Congress. Article 2 states: “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” Since 1948, Congress has exercised its constitutional authority with a law that says plainly: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”

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Donald Trump vs. Democracy

The fundamentals are clear: Donald Trump lost the popular vote in 2016 and is poised to lose it again in 2020. His only hope is to squeak out an Electoral College margin in the only states that matter—and only through a multifarious campaign of voter suppression which exploits the pandemic to undermine democracy itself. Failing that, he can use bogus charges of voter fraud to question results in key states, including those where a surfeit of mail-in ballots delays a final count. The battleground states of Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin all narrowly favored Trump in 2016; recent polls show him trailing Joe Biden in all six. But many Democrats now believe that, with money and effort, they can flip three other states that Trump carried easily in 2016: Ohio and, more surprisingly, Georgia and Texas. At a time when the coronavirus has deep-sixed Trump’s approval ratings, flipping states that Trump barely won would seem like a relatively easy task. But the coronavirus has severely complicated the electoral landscape by making voting on Election Day a potentially serious public health risk…But the pandemic-driven recourse to voting by mail has resulted in further efforts to protect the GOP from the ravages of democracy…Hence the GOP’s effort to underfund the agency charged with delivering mail-in ballots in a timely manner: the U.S. Postal Service. Addressing these efforts, Laurence Tribe warned that funding the USPS is “vital if voting isn’t to become a form of Russian roulette. People died for the right to vote. They shouldn’t have to die to exercise it.”

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Trump Could Defy Election Defeat. But He Needs Accomplices

President Donald Trump’s powers to dispute the election results if Democratic candidate Joe Biden is victorious in November may hinge upon whether allies support such a challenge. Asked on Sunday, the president would not confirm whether or not he would accept the results of November’s election. This has prompted backlash from Democratic lawmakers, with his behavior branded dictatorial, and calls for people to prepare to take action should he refuse to accept the results. Trump’s remarks came after the president’s frequent attacks on mail-in voting, which he has suggested—without evidence—could undermine November’s outcome. Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard, told Newsweek Trump’s comments prompted him to “worry more than ever before that the 240-year history of peaceful successions of administrations might not hold this time and that the American experiment is in the gravest danger it has faced since the Civil War.” Tribe suggested that if the results were certified by Congress, and all prior contests had been resolved, on January 6 that Trump would thereafter need to enlist allies “in order to exercise anything resembling real power.” …He bases this around the notion the president cannot run the executive branch without assistance, while others are barred from using its authorities at the behest of anyone other than the legitimate president—with the threat of criminal prosecution should they choose to. Tribe said while that offers some protection in that scenario, it does not prevent Trump posing challenges along the way.

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How Biden could use air law to vanquish Trump climate legacy

If Democrat Joe Biden defeats President Trump this November, his EPA will have a blank slate for writing climate rules. Because the Trump administration spent 3 ½ years demolishing its predecessor’s Climate Action Plan, Biden’s team would have an opening to update rules for carbon, methane and hydrofluorocarbons that would exceed their Obama-era counterparts or be more tailored to the political, judicial and economic realities of the 2020s. To be sure, a departing Trump EPA would leave finalized rules for power plant carbon, vehicle fuel economy, and oil and gas development, among other things, but most of those regulations haven’t faced court reviews, allowing an incoming administration to ask that they be returned to the agency. That request — if granted — would clear the path for a Biden EPA to write new rules to go with the former vice president’s promise of rejoining the Paris Agreement and the global effort to contain global warming…Meanwhile, the Trump administration has succeeded in moving the courts to the right, up to and including the Supreme Court. Justice Anthony Kennedy, the swing vote who retired from the court two years ago, usually sided with the court’s liberal members on environmental cases like Massachusetts v. EPA, which established that EPA has the authority and obligation to address climate change under the Clean Air Act. The two justices Trump has nominated don’t have that reputation…Richard Lazarus, a Harvard Law School professor and author of “The Rule of Five,” which chronicles Massachusetts vs. EPA, said the agency under Biden would be aggressive. But he agreed that a conservative Supreme Court would be a barrier. “They will try to do more on power plants under a less ambitious legal theory,” he predicted, adding that that would probably mean on-site emissions reductions.

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Biden Needs a Battle Plan to Defend Modern Government

An article by Cass SunsteinSome conservative legal thinkers speak of a “Lost Constitution” or “Constitution in Exile.” By that they mean the Constitution as it was understood before President Franklin D. Roosevelt’s New Deal helped form the modern regulatory state. Their Constitution in Exile would invalidate key parts of contemporary government. Some conservatives want to revive the long-dead “nondelegation doctrine,” which was once taken to forbid Congress from granting broad discretion to regulatory agencies. The Supreme Court made a strong movement in the direction of the Constitution in Exile in its most recent term, when it ruled that the Consumer Financial Protection Bureau may not be made independent of the president. The court stopped well short of upending the regulatory state. But it was just a preliminary skirmish. Bigger battles are brewing. Those who want to defend modern government — including Democrats if they regain power in November — will need to think hard about appropriate reforms if the Supreme Court begins to invalidate larger features of the U.S. government as it exists today. A Supreme Court bent on resuscitating the nondelegation doctrine would put important parts of the Clean Air Act, the Occupational Safety and Health Act and the National Traffic and Motor Vehicle Safety Act in jeopardy. Those who believe in the Constitution in Exile also have trouble with the idea of independent agencies, such as the National Labor Relations Board, the Federal Reserve Board, the Federal Communications Commission and the Federal Trade Commission. The president has limited control over the heads of such agencies; he cannot fire them simply because that’s what he wants to do.

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A big election amid pandemic in a riven land

State election officials are bracing for two trains on a possible collision course this fall: potential record turnout for the Nov. 3 general election, and an expected surge of the highly contagious and sometimes deadly COVID-19…Though the federal government can provide money and offer assistance, states control every aspect of voting except the date of Election Day, such as how elections are run, how and when voter registration takes place, the methods used to cast votes, what ballots look like, and how close races are handled. That local control comes with a price. “The core problem with the U.S. is you don’t have a single expert federal authority that runs elections that could have lots of resources, lots of expertise. You have 50 political secretaries of state; you have thousands of counties, all of which administer their own elections, and so, you’re never going to have uniform improvement or uniform competence when you have such a decentralized electoral system,” said Professor Nicholas Stephanopoulos, an election law expert at Harvard Law School…The case Stephanopoulos said he’s most closely watching is one filed by the Republican National Committee and several affiliated organizations that seeks to bar the state of California from sending ballots to every eligible voter. State officials, including Gov. Gavin Newsom, a Democrat, say they want to avoid forcing citizens to choose between exercising their right to vote and risking their health. But Republicans, including President Trump and Attorney General William Barr, claim without evidence that mail-in voting invites fraud and makes it easier for foreign actors to interfere in elections. In June, the president said the “biggest risk” to his reelection is losing these legal fights to stop the expansion of mail-in voting.

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Trump, Biden Square Off Over Environmental Regulations

Environmental regulation is shaping up as a defining issue in the presidential race, with President Trump doubling down on his bid to ratchet back government oversight and former Vice President Joe Biden promising to reverse Mr. Trump’s regulatory rollbacks. The rivals this week outlined diametrically opposed views. Mr. Trump ordered a streamlining of environmental reviews and said he would keep shrinking the reach of government to help business. Mr. Biden, the presumptive Democratic nominee, released a $2 trillion clean-energy plan he said would spur job growth through investments in new technology…Shortly after taking office, Mr. Trump also issued a hiring freeze designed to starve agencies through attrition. The Occupational Safety and Health Administration, which investigates and regulates workplaces for health and safety issues, has the lowest number of inspectors in more than four decades and has seen inspection tallies plummet. The Environmental Protection Agency has seen similar decreases in inspections when compared with the Obama era, according to government reports. “The administration came into office with an unnervingly good understanding of how the machinery of regulation works and they did a pretty effective job of sabotaging it,” said Joe Goffman, executive director of the Environmental & Energy Law Program at Harvard Law School. The approach will make it tougher for a new administration to carry out its objectives.

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The Supreme Court’s Future Hinges on the 2020 Election

An article by Noah FeldmanThe blockbuster Supreme Court term that just ended was a (nearly) unmitigated disaster for movement conservatives. Chief Justice John Roberts declined to overturn precedent on abortion rights. Conservative activist Justice Neil Gorsuch showed he would join the court’s liberals when the statutory text tells him to. The natural question then is, what’s next? What are the implications for the future of the court? The short answer is that the court’s future direction is in flux like no other time in recent memory. And what happens next will be determined by the 2020 election and the justices’ health. The first crucial point here is that, had Roberts and Gorsuch not crossed the court’s ideological lines in the most high-profile cases of the term, we would be looking at an extremely conservative court for the foreseeable future, regardless of the outcome of the November vote. The court has five conservative justices who — until this term — seemed capable of acting as an unassailable voting bloc for the indefinite future. (The oldest, Justice Clarence Thomas, is only 72.) This bloc was formed after Senate Majority Leader Mitch McConnell and the Republican Senate blocked a confirmation vote on Judge Merrick Garland during the Obama administration, allowing a newly elected President Donald Trump to appoint Gorsuch. The retirement of Justice Anthony Kennedy, a swing voter who repeatedly delivered liberal-friendly results on issues like gay rights, abortion, and Guantánamo, then allowed Trump to appoint Justice Brett Kavanaugh, who is (so far) a much more reliable conservative. This conservative majority was the first on the court in nearly a century, and conservative activists anticipated that it would overturn Roe v. Wade and hold the line on cultural issues like transgender rights.

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International Tax Policy To Watch In The 2nd Half Of 2020

All eyes in the international tax world are focused on the last weeks of 2020, when governments are expecting a mad dash of dealmaking over the digital tax conundrum, which has eluded a multilateral solution for years.Officials at the Organization for Economic Cooperation and Development, which is spearheading the negotiations, are hoping the U.S. presidential election, regardless of its outcome, could break a stalemate and allow the U.S. more leeway to participate in a consensus solution. But observers, including those who have participated in past OECD tax efforts, question whether the election, or even a change in administration, would be enough to bridge the gap between the U.S. and Europe before a potential trade war begins. “The biggest thing to expect is conflict,” said Daniel Bunn, vice president of global projects at the Tax Foundation, an economic think tank based in Washington, D.C. Robert Stack, a managing director at Deloitte Tax LLP and the former Treasury deputy assistant secretary for international tax affairs, noted that whoever is president in 2021, the changeover between terms could make it difficult for the U.S. to sign off on any agreement. New personnel for former Vice President Joe Biden, if he wins the presidency, won’t come in until January, while Mnuchin and other top Treasury officials may not stay through a second term of the Trump administration. Stack spoke during a webinar hosted by the Tax Foundation on July 1…Stephen Shay, a professor at Harvard Law School and a former Treasury official during the Clinton administration, told Law360 that a change in administration could put off any agreement on the most contentious issues for months. Key officials at Treasury — the political appointees who would need to sign off on an agreement — don’t understand these tax issues “except at the very highest level,” he noted. “It is likely well into 2021 before you get meaningful U.S. engagement and sign off,” Shay said. “Biden may be much better organized than his predecessors, but that is an optimistic take.”

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How Joe Biden Could Undo Trump’s Damage to Environment

Donald Trump has smashed a lot of environmental china in four years. To name a few instances: he pulled out of the 2015 Paris Agreement (a move that becomes official on July 6, 2021); loosened automotive-mileage and power-plant-emission standards; and sought to eliminate the protected status of the sage grouse, opening up 9 million acres to oil and gas extraction. Reasonable minds may differ on the wisdom of any one of those moves, but no one can deny the unprecedented sweep of Trump’s policies. Data from Harvard Law School’s Environmental and Energy Law Program and Columbia University’s Sabin Center for Climate Change Law show that the President has signed more than 100 administrative rules, Executive Orders and acts of deregulation, 66 of which have gone into effect…It wouldn’t necessarily be easy. The U.S. would not simply be permitted to rejoin the agreement but would have to negotiate its way back in. One way to improve its chances would be for the U.S. to present an even more ambitious greenhouse-gas reduction target than it had before, says Joseph Goffman, the Harvard program’s executive director. That original target for the U.S. was a cut of 26% to 28% below 2005-level carbon emissions by 2025. If Biden agreed to more, he might win the U.S. the favor of the other 196 signatories to the pact, but then he would have to deliver; that’s where the work on the domestic side would begin…If presumptive Democratic presidential nominee Joe Biden defeats Trump in November, what could he do in his own four years to undo the work of the Trump era? “The biggest, flashiest thing would be for Biden to stand up on day one and say the U.S. is recommitting itself to Paris,” says Jody Freeman, director of the Harvard program. “We should make clear we’re going to take back the reins we’ve relinquished.”

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