Why I plan to vote for Hillary, even though I love Bernie

A Primer for Understanding Some Possible Ramifications of the Upcoming Republican Party Crackup

As non-Trumplican Republicans panic at the prospect of a Donald Trump nomination, one of the options being explored  by ideological conservatives and "mainstream" Republican "moderates" is a third-party option. And a recent Huffington Post piece sets forth a generalized scenario, one which would rely on kicking the election to the House of Representatives when neither Trump nor Clinton nor Third-Party Independent Republican Candidate X secure a majority of the Electoral College.  But that piece does not lay out the very important specifics of the Constitutional requirements.

Here is how it would actually work.  The Electoral College votes for President will be counted in the House of Representatives on January 6, 2017 -- two weeks before the Constitutionally-mandated inauguration on January 20, 2017.  See the 20th Amendment to the Constitution.  The Electoral College votes for Vice President will be counted that day by the Senate, as well.  

In a hypothetical three-way race, let's say none of the tickets secures 270 Electoral Votes.  Under the 12th Amendment to the Constitution, if no candidate receives a majority of the Electoral Votes when counted by the House of Representatives, the House then immediately votes among the top three vote getters. Each state gets only one vote. The House votes until someone gets a majority of the states. And if a state House delegation cannot come to majority agreement, it cannot cast a vote. These wrinkles are important for several reasons.  

First, the Democrats, even if they do exceptionally well in the House elections in November 2016, cannot possible win a majority in a majority of states, since their support is more centered in the larger population states.  Most of the smaller population states are solidly Republican.  

But this is not the end of the analysis.  If, for example, a state is divided between Trumplican and Independent Republican loyalists (and Democrat or a few Democrats), then it may be unable to muster a majority to cast a vote at all.  Say a state has 9 Representatives: 2 Democrats, 4 Independent Republicans, and 3 Trumplicans.  That state could be paralyzed. Likewise a state delegation evenly divided between Trumplicans and Independent Republicans. So between states that have Democratic majorities, Trumplican majorities, Independent Republican majorities, and those which are deadlocked, none of the candidates could secure a majority. Indeed that could happen even if none of the delegations are deadlocked. So the likelihood that the House would not be able to elect a President is significant.

What would happen then?  Well, the 12th Amendment provides that if the House cannot make a selection, then the new Vice President shall be Acting President until the impasse is resolved. The Vice President is chosen by the Senate, and may only vote on the top 2 Electoral College vote recipients. There is no way to know who the top two would be, but given past experience and demographics, one of them is likely to be the Democrat. Who the non-Democratic choice would be would depend on whether the Trumplicans or the Independent Republican ticket did better in the Electoral College. 

And who would be in the Senate making the Vice Presidential selection?  Since Senators currently holding seats up for re-election in 2016 will have their terms expire on January 3, 2017, the new Senate -- which could be majority Democratic -- would make that selection.  And even if the new Senate were evenly divided, Joe Biden would still be Vice President, so he would break the tie.  Thus, there would be a very good chance, in this scenario, that the Acting President would be Julian Castro, or Sherrod Brown, or Tim Kaine, or Elizabeth Warren, or whoever else the Democratic VP nominee might be.  

So we could well have a Democratic Acting President on January 20, 2017.  

Ideology aside, that might not be a terrible result, since the Democratic ticket likely would have received a solid plurality of the popular vote.  (Abraham Lincoln was elected in 1980 with a 39% plurality of the popular vote).  But that likely would not be the end of the story.

The 20th Amendment provides that the "Vice President elect shall act as President until a President shall have qualified."   How long would the deadlock continue?  That, of course, would depend on who is in the House, and what kind of deals and compromises might be struck. It would make the Constitutional Crisis of 1801, when the Electoral College deadlocked between Thomas Jefferson and Aaron Burr due to a glitch in the pre-12 Amendment rules, look like a walk in the park.  That, history buffs will recall, was resolved when Alexander Hamilton threw his influence behind his ideological arch-enemy Jefferson because Hamilton viewed Burr as an unprincipled opportunist. He was probably correct; and it probably cost him his life a few years later when Burr killed him in a duel.

It might be as frightening as the Constitutional Crisis of 1877, when a controversy over the winner of the Electors in Oregon deadlocked the result, and there were threats of violent marches on Washington. That crisis was resolved by a sell-out of the recently freed slaves in the old Confederate States:  The Oregon Republican Electors were certified, in return for the commitment to withdraw federal troops from the South, thus ending Reconstruction and leaving the freed slaves to the tender mercies of the Ku Klux Klan.

Whatever the Republicans and Trumplicans do, this lesson in the Constitution and Presidential Election history is a further reminder of the responsibility the Democratic Party has to be unified and effective in the general election, and make this scenario irrelevant. 

Why I support Jamie Raskin, and why people should not follow the Washington Post's editorial endorsement of Kathleen Matthews

Today, the Washington Post endorsed Kathleen Matthews -- former local TV news anchor, Marriott executive, and spouse of MSNBC commentator Chris Matthews -- for the Democratic Party nomination in Maryland's 8th Congressional District. While the editorial was complimentary to her fellow candidate State Senator Jamie Raskin, the Post concluded that Ms. Matthews would be more effective, notwithstanding Senator Raskin's long record of successful advocacy in the Maryland General Assembly. The Post concedes, in today's editorial endorsement of Ms. Matthews, that Senator Raskin, "the Maryland Senate's majority whip, is recognized in Annapolis as an effective legislator. A constitutional law professor at American University, he played key roles in ending the death penalty, legalizing same-sex marriage and tightening gun control laws. He is respected in his legislative district... for granular attention to his constituents's needs."

Yet the Post endorsed Ms. Matthews, a corporate executive who has never held public office (elected or otherwise) and has little if any discernible history of local community involvement, other than as a spectator.

Both Ms. Matthews and wealthy businessman David Trone, who also has no such history, have been flooding the airwaves with television advertisements. Those who get all their election information from the tube might think that they were the only candidates.  Last week, the Post quoted Senator Raskin's response to the campaigns of Ms. Matthews and David Trone: "Public office isn't something that you buy, it's something that you earn through your devotion to the public good and your service to the community."

Exactly. Jamie Raskin has not only earned our support but has demonstrated his effectiveness, as the Post editorial concedes. So why did the Post choose to endorse Ms. Matthews? Because, in the Post's words, Ms. Matthews "would be more pragmatic and less doctrinaire than the left-leaning Mr. Raskin, whose passionate liberalism is unsurpassed in Annapolis."

The Post's assertion that Senator Raskin is too doctrinaire echoes the attack recently made on the senator by Mr. Trone, who is quoted in an earlier Post article as saying that the senator is a "polarizing figure from the left" who would be unable to build coalitions with House Republicans. Senator Raskin answered that charge by presenting his actual record, which includes his co-sponsorship with Republican State Senator Michael Hough of the Second Chance Act, designed to help those with nonviolent misdemeanor convictions return to the job market, and his introduction, with then-Senator David Brinkley, also a Republican, of medical marijuana legislation. So Senator Raskin has demonstrated that he can work across the aisle, while still being a strong advocate for progressive values.

Nevertheless, the Post's argument for Ms. Matthews over Senator Raskin (the Post dismisses Mr. Trone as unprepared for the job) is that "as a local reporter and anchor for WJLA for 25 years, and then as head of public affairs for Marriott International, she has developed a deep facility with policy and politics." Stripped to its essentials, the Post's position is that Ms. Matthews, as a product of corporate America, "is better positioned to be effective."

But not in this case, certainly given the qualifications and experience of Jamie Raskin. Our representatives in Congress need to balance the power of corporate America -- not be an arm of it. Jamie Raskin is the best choice for the 8th Congressional District.

(For more information, see this Facebook video and the Raskin campaign website.)

The Harvard Law School Seal: What Should Be Done?

Yesterday, Vox posted a short article about the controversy surrounding the Harvard Law School shield, which is based on the family seal of the Royalls, major slaveowners who bequeathed land and money to Harvard, laying some of the groundwork for the creation of the Law School.  The Harvard Crimson published a more detailed piece.

The seal is unobjectionable on its face.  It is has the word “Veritas” – truth, Harvard’s slogan – over three sheaves of wheat.  But the wheat comes from the Royalls’ family crest and symbolizes the source of the family wealth – wealth that was predicated on the massive use of slaves in Antigua and in Massachusetts.

Law School Alums were recently sent an e-mail from the Law School's Dean Minnow agreeing with a Harvard Committee recommendation that the shield be eliminated. When I went there in the early 1970s, no one was aware of the origins of the seal -- at least not that I know of. Indeed, I was oblivious to the seal's existence.  Apparently, this did not become a topic of wider knowledge and conversation until about fifteen years ago. My initial reaction to Dean Minnow’s e-mail was to agree fully with her recommendation. After reading the Committee's majority and dissenting reports (wisely provided by Dean Minnow in her e-mail), I am not so sure.

Last summer, I wrote about this general subject in the context of discussion of a Confederate Soldier Memorial Statue outside the Montgomery County Courthouse in Rockville, arguing that that statue should be removed. 

The Harvard Law School seal issue is it not as clear-cut as the Confederate Soldier Memorial issue.  The symbol is not offensive on its face.  But it does represent the sordid side of our country’s origins (and the origins of its most prestigious institutions).  The report of the Harvard Committee recommending that the seal be dropped is useful, because it provides a reasonable framework to analyze such questions. http://today.law.harvard.edu/wp-content/uploads/2016/03/Shield-Committee-Report.pdf 

But the dissenting view of Committee member Professor Annette Gordon-Reed, an African-American scholar who has written extensively on the history and legacy of slavery, digs deeper into the issues and concludes that this particular symbol should remain, so that the Law School community always remember, rather than paper over, the evil past.  Here is part of what Professor Gordon-Reed writes:

Thanks to historians, we have “new knowledge” that we are joined in history to a group of people entrapped in the tragedy of the Atlantic slave trade. This also joins us to the larger American story of slavery. We should take this knowledge and run with it, not away from it. I end where I began: the larger purpose outside of our own personal feelings is to marry the memory of the injustice done to the people enslaved on the Royall plantation to Harvard Law School’s modern commitment to justice and equality through a well-known symbol that connects both.  

While I appreciate the highly-charged (and perfectly legitimate) emotions and intellectual points surrounding the origins of the seal and the accompanying desire to remove it, Professor Gordon-Reed may well have the better of the argument.  I would ask that no one agree or disagree on this point without first reading both the majority and dissenting reports. They are both worth considering as we face up to our history and try to figure out which symbols we should keep and which symbols we should drop. 

The GOP's "Perfect" Storm

On August 11, I outlined the dilemma in which the Republican Party now finds itself.  For anyone interested, below is an annotated version, in light of yesterday’s election results:

***

There will be 2,470 voting delegates at the Convention -- or 1,236 to win the nomination... 49% of those delegates will be selected before March 15 -- the time period during which the states MUST use a proportional formula for delegate allocation.  So let's say that Trump secures 25% of those delegates -- and is running in "first place."  In Trump World (and, to be honest about it, in Media World) that would mean he is "winning" even if most of the other 75% desperately wants someone else.   So on March 14, let's say he has 302 delegates (25% of the total). [Indeed, he has 315 delegates after yesterday’s results.]  He would need to get 934 [actually, now 921] of the remaining 1,262 delegates to win.  Sounds daunting, no?

Well, it is not daunting at all, under the present rules. The Republican National Committee allows state parties selecting their delegates beginning on March 15 to use a winner-take-all approach:  In other words, whoever come in first, regardless of the percentage of votes secured, gets ALL the delegates. [Nearly all of those states have opted for the winner-take-all approach.]  

 
So even if a number of candidates drop out, it is not at all inconceivable that Trump will continue to role up pluralities; except that from March 15 onward, a 25% [or, as things seem to be playing out, a 35% plurality] translates to 100% of the delegates.  If Trump gets pluralities in states with 74% of the remaining delegates, he wins the nomination.

Of course, the state parties could easily deprive Trump of such a triumphant march to the nomination by changing their rules to mandate proportional representation (as is required in the pre-March 15 states).  Indeed, such an approach certainly would be more democratic.  But, in Trump World, that would be "unfair" because he would be deprived of so many delegates even though he is "winning" -- i.e., coming in first in a multi-candidate field.  If he loses the nomination because he is not treated "fairly," he has made it clear he will run as a third-party candidate, thus probably assuring a Democratic Party victory in November.  So the party leaders likely will not change their formulas.

[But if the party leaders did seek to change the formula, Trump could (and likely would) file a lawsuit.  A similar 1972 lawsuit is discussed on pp. 14-15 of a law review article I co-authored with Joe Rauh and Ken Bode in 1973.  Here is what happened:  In June 1972, George McGovern seemed to seal the Democratic nomination by winning the then-winner-take-all primary in California with 43% of the vote; the Democratic Party rules then allowed winner-take-all primaries.  When the anti-McGovern forces on the Convention’s Credentials Committee voted to strip McGovern of 57% of his California delegates – thus depriving him of a majority on the floor of the Convention – McGovern sued, and a panel of the U.S. Circuit Court of Appeals for the District of Columbia Circuit agreed that it would be illegal for the Convention to change its rules at the end of the game.  The Supreme Court issued a stay of the ruling, and the Convention eventually awarded McGovern all of the California delegates, thus assuring his nomination and making the lawsuit moot.  But the chaos created at the Convention doomed the McGovern candidacy in the general election. See this previous post for more on this.]

Now if, by Spring, there is a one-on-one matchup with Trump, one would think that Trump would lose.  But who would that one candidate be?  Is there any party leadership that could clear out the field for a one-on-one matchup?  It is hard to see, for example, the Koch Brothers being able to push out Jeb Bush in favor of Scott Walker; and it is hard to see Scott Walker bowing out in favor of Bush.

[The lineup of candidates is even more difficult for the party Establishment than the one I posited last August.  Bush and Walker are gone; just about everyone in the Establishment can’t stand Cruz, and Rubio is a lightweight; Kasich has yet to come in first anywhere. The process will drag on (with the accompanying embarrassing attacks by the candidates on each other), at least through March 15 -- and beyond, particularly if Rubio or Kasich are able to win their home states. There are no good choices for the Republican Party, and they realize that.]