Your weekly source for analysis and insight from experts at the Brennan Center for Justice

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The Briefing

The Supreme Court yesterday unanimously held that states may penalize “faithless electors

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” — members of the Electoral College who vote for a presidential candidate other than the one they’ve pledged to support. “When a State instructs its electors that they have no ground for reversing the vote of millions of its citizens,” Justice Elena Kagan concludes in her pithy opinion, “[t]hat direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.” As Brennan Center Fellow Ciara Torres-Spelliscy notes

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, this is “a strongly pro-voter decision.”

Whew. Any other ruling would have been one more jolt that our democracy doesn’t need.

And it’s important to note that the Electoral College is profoundly undemocratic. Twice in 16 years, the popular vote loser nevertheless took office. (It almost happened a third time: in 2004, if 60,000 votes had switched in Ohio, John Kerry would have won despite losing the popular vote. Perhaps then Republicans would demand reform, while Democrats would extol the wisdom of the founders.)

Even in a year when the winner actually wins, the Electoral College distorts democracy. Candidates focus on a handful of swing states, essentially ignoring voters in reliably blue states (such as California or New York) or red states (such as, until this year, Texas).

More than two centuries after it was designed to empower southern whites, the Electoral College continues to dilute the political power of Black voters. As Wilfred U. Codrington III wrote

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last year in the Atlantic, “Despite Black voting patterns to the contrary, five of the six states whose populations are 25 percent or more Black have been reliably red in recent presidential elections. Three of those states have not voted for a Democrat in more than four decades.”

It would take a constitutional amendment to do away with the Electoral College, but there is another, albeit somewhat fragile solution: the National Popular Vote Interstate Compact (NPV)

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. States would commit to award their electoral votes to the winner of the national popular vote instead of the state’s popular vote winner. The compact will go into effect when states controlling at least 270 electoral votes (the amount of electoral votes needed to win the presidency) have joined — and with 15 states signed on, we’re 72 percent of the way there.

While this faithless electors decision is a good one, it exposes the cracks in our democracy. It’s past time for our presidential elections to allow for “one person, one vote.”

Democracy

To Protect Democracy, Expand Vote by Mail

The June primaries were the latest indicators that voters are flocking to absentee and voting by mail in record numbers. But even most of the states that expanded or promoted absentee and mail-in voting were unprepared to meet the spike in demand, with reports in several states of voters requesting but not receiving mail ballots in time to vote. One consequence of this was unconscionably long lines at the polls. Instead of arguing about mail voting, says Wendy Weiser, we need to accept that it is happening and do everything possible to make sure states are prepared. // Read More

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How Labor Laws Disfavor People of Color

The grand statements made by companies committing to racial equity are belied by a sorry history of not following through on good intentions when it comes to workers of color. It’s not just a failure of inaction — it’s one of longstanding and aggressive opposition by business interests to fixing the core defects of our labor and employment laws that have excluded many workers of color from economic gains. Until companies like Walmart, Uber, and Amazon stop classifying their workforce as contractors, “we should write off their pronouncements as just a brand update and nothing more,” writes Brennan Center Fellow Caroline Fredrickson. // Read More

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Justice

Trump and McConnell’s Overwhelmingly White Male Judicial Appointments

President Trump has filled about 30 percent of the positions in the country’s federal appeals courts. Not a single one of his 53 appointees is Black, and only a single one is Latino. “Decades from now, many of the federal judges Trump and McConnell rammed through the Senate will still be serving as little poison pills throughout the country,” writes Brennan Center Fellow Andrew Cohen. “White men issuing definitive legal rulings in a country that looks less like them every single day.” // Read More

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Constitution

Counterterrorism Policies Are a Terrible Fit for Today’s Challenges

When a crisis hits the United States, the post-9/11 “war on terror” playbook is often pulled out for answers. Our civil rights and liberties all suffer, hitting communities of color and dissidents especially hard. Counterterrorism tools allow policymakers to seem tough without actually confronting difficult issues, and there’s scant evidence that these tactics are actually effective. Faiza Patel details how counterterrorism tools have been used to threaten protesters, suggested for battling Covid-19, and failed to stop school shootings. // Read More

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Coming Up

VIRTUAL EVENT: Pandemic Propaganda: A New Electoral Crisis

Thursday, July 9 | 12:00 p.m. EDT | RSVP Today

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This event is produced in partnership with Foreign Affairs and New York University’s John Brademas Center.

How will the misinformation pandemic inflamed by the coronavirus crisis reshape the political landscape? And how might domestic and foreign actors weaponize rumors, conspiracy theories, and disinformation about Covid-19 against American voters in the lead-up to the November election? A distinguished panel will discuss measures that can address these challenges in the upcoming months and help ensure the 2020 election is free, fair, and safe.

Speakers: Laura Rosenberger, Director, Alliance for Securing Democracy; Ian Vandewalker, Senior Counsel, Democracy Program, Brennan Center for Justice; Ángel Díaz, Counsel, Liberty & National Security Program, Brennan Center for Justice; Daniel Kurtz-Phelan, Executive Editor, Foreign Affairs (Presider)

News

Victoria Bassetti on Chief Justice John Roberts’s role on the Supreme Court // Financial Times

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Ames Grawert on police reform legislation // Reuters

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Theodore Johnson on the rise to prominence of new Black candidates // Yahoo News

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Douglas Keith on the lack of diversity of Rhode Island’s judges // Boston Globe

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Raúl Macías on how individuals can make sure their votes are counted // Lifehacker

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Myrna Pérez on the ways Covid-19 is changing how we vote // Skimm This

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Wendy Weiser on the surge of litigation over election rules // Philadelphia Inquirer

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Jennifer Weiss-Wolf on police restricting access to menstrual products for protesters in custody // Newsweek

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Have an issue you'd like us to cover? Feedback on this newsletter? Email us at [email protected]

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The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary defend – our country’s systems of democracy and justice.


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