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

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The Briefing

An Urgent Message

This week, Congress is making critical decisions that will determine whether we have elections that are free, fair, accessible, and safe. Our right to vote is at the heart of American democracy, and their negotiations for a Covid-19 stimulus package must include adequate funds for states to run elections. Unfortunately, the proposal released yesterday by Senate Republicans provides zero funds for elections. Of course, lawmakers are negotiating. But a failure to fund elections in 2020 would be a gross abdication of responsibility. In a previous stimulus bill both parties came together to provide the first funding, though it only provided one-tenth of what states need. The House already has passed $3.6 billion.

Sunday marked 100 days until the November election. I always try to be optimistic, to look on the bright side and trust that things have a tendency to work themselves out. But it’s getting harder. Without urgent action, a chaotic 2020 election could leave the voices of millions unheard and our country riven.

The United States is unprepared to hold a safe and credible election in the face of the coronavirus. As the president now (sometimes) admits, the Covid-19 pandemic will not “go away” by November. We have every reason to think that the coronavirus will dominate the weeks before Election Day.

We know what could go wrong — we’ve already seen it in the primaries. In Wisconsin, major reductions in the number of polling places forced voters to wait in hours-long lines spanning several blocks. The same happened in Georgia, where malfunctioning voting machines and a shortage of experienced poll workers made a bad election worse. The lines there were longest, as they tend to be

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, in Black communities. In Kentucky, a video that circulated widely on social media showed voters pounding on the doors of Louisville’s sole polling place, which was locked up before all voters in line had been let in.

With many more voters and brutal partisan combat, the general election could be much worse. It will also have far graver consequences.

There are five risks that the Brennan Center is particularly worried about over the next 100 days

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: inadequate funds, messy vote by mail, inadequate safe in-person voting opportunities, misunderstood ballot counting rules, and fake news. All of this could combine in a toxic stew. Imagine long lines. Millions of ballots rejected. Militias with guns. QAnon supporters spouting conspiracies. Russia making mischief. And a president tweeting “FRAUD” even before the ballots have been counted.

Election problems could mostly disenfranchise those Americans hardest hit by the pandemic. Traditional barriers to voting, which disproportionately harm people of color, could compound the dangers of the pandemic to form a lethal dose of vote suppression. But there’s still time to do better. We need a full national effort.

Officials are working hard and in good faith to prepare for November, but states lack the resources to complete the enormous task at hand. Congress must step up and quickly fund our elections. State officials must recruit poll workers, especially younger people, who face lower risks to their health. They must also ensure that ballot applications are sent out and prepare to carefully count the vote. Private businesses can help recruit election workers and offer sites for polling places. And the media should educate citizens about how to vote — and that a delay in the results is a sign not of misconduct but of election officials doing what it takes to count every vote correctly.

If we do all these things over the next 100 days, we can run an election that all Americans will consider free, fair, secure, safe — and legitimate.

Democracy

Last Chance to Secure the 2020 Elections

Two election officials from Pennsylvania spoke with the Brennan Center about the urgent need for federal funding to fight disinformation, protect voting systems from cyberattacks, and make sure voting is safe amid the coronavirus pandemic. “Counties are already spending so much trying to recover from the economic impact of Covid-19. They can’t add to the election budget,” Secretary of State Kathy Boockvar tells Tim Lau. “The fact is that the amount of money that has been provided thus far is not going to cover the expenses that counties have had to take on to administer the primary and the upcoming November election,” says Jonathan M. Marks, the state’s deputy secretary for elections and commissions. // Read More

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Make Sure Black Lives Count

An accurate count of our country’s Black communities in the 2020 Census is essential to correcting long-running racial inequities in the way power and money are distributed in the United States. But preliminary assessments of response rates suggest that the Black community is at risk of a significant undercount. This would be damaging in any year, but a major Black undercount would be catastrophic amid the Covid-19 crisis, which has laid bare the economic and health challenges faced by communities of color. “The fight to ensure a full count of Black communities this decade is also about fixing injustices in the ways Black communities have been counted for centuries,” writes Kelly Percival. // Read More

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Honor John Lewis by Fighting Voter Suppression

John Lewis lived long enough to see the arc of the moral universe bend toward justice. Unfortunately he had to watch it bend back again toward the injustice we see today. If members of Congress really want to honor Lewis’s legacy, they would restore a vibrant Voting Rights Act. The good news is that we’re partway there: in 2019, House Democrats passed H.R. 1, which would not just restore the Voting Rights Act, but also add automatic voter registration, reform redistricting, and otherwise make it easier for Americans to cast valid ballots. The House also passed the Voting Rights Advancement Act, which would fix the problems caused by the Supreme Court’s 2013 ruling in Shelby County v. Holder. But both measures have been languishing in Mitch McConnell’s Senate. // Read More

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Justice

Claiming Self-Defense Isn’t a Get-Out-of-Jail-Free Card

Meet Mark and Patricia McCloskey. They’re the St. Louis couple who infamously grabbed a semiautomatic rifle and handgun and confronted peaceful Black Lives Matter protesters walking by their home. Their rationale: they were frightened. Last week, the couple were charged by the St. Louis prosecutor with unlawful use of a weapon and fourth-degree assault. The uproar was swift, with Missouri Attorney General Eric Schmitt urging dismissal of the local charges. But as Brennan Center Fellow Eric Ruben writes, Schmitt’s argument confuses the law of self-defense and the Second Amendment. Schmitt is essentially arguing that gun owners get to decide for themselves whether they are justified in using their guns — a position Ruben calls “a dangerous and lawless position that almost certainly would lead to unnecessary shows of force.” // Read More

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What Keeps Thousands in Prison During Covid-19

Laddy Valentine is incarcerated in a Texas prison. He is at elevated risk of dying from Covid-19. And he’s also a lead plaintiff in a federal class-action lawsuit against his prison. Valentine demands that prison officials supply incarcerated people with personal protective equipment and soap, as well as institute effective social distancing policies to protect people’s lives. His situation is not unique. Despite advocates’ early calls for a fast reduction of prison and jail populations because of the pandemic, the total prison population among 49 states has only been reduced by around 5 percent. Taryn Merkl and Brooks Weinberger examine the various hurdles facing incarcerated people as they fight for their health and safety, writing, “Respect for their lives demands more releases from prison as quickly as possible.” // Read More

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Constitution

The President’s Private Army

Trump’s abuse of power in Portland is part of an ongoing effort by the administration to get around “posse comitatus”: the principle that the president cannot use the military as a domestic police force. While protecting federal property may be the official justification for the deployment of federal officers, it’s clear that they’re acting as a paramilitary force to help Trump achieve his long-standing goal of “taking over” U.S. cities run by Democrats. “Congress and the courts must step in,” writes Elizabeth Goitein. “Otherwise, having found his army, Trump is sure to use it again in coming months.” // Read More

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News

Ángel Díaz on police surveillance during protests // Gotham Gazette

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Rachel Levinson-Waldman on police body camera footage // Voice of San Diego

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Faiza Patel on the anonymity of health data when apps track the coronavirus // NBC News

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Myrna Pérez on voter suppression // Axios

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Michael Waldman on voting // VICE News

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Wendy Weiser on laws that claim to address voter fraud // USA Today

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Thomas Wolf on Trump’s plan to exclude undocumented immigrants from the census count // BradCast

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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.

Brennan Center for Justice at NYU School of Law

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