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

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We know how election night usually goes. At 11 o’clock on the East Coast, the news anchor breathlessly announces a winner. Maybe it drags into the early hours. It’s a cathartic conclusion to a drama.

That probably won’t be the way it works this year. Barring a landslide victory, Election Day could become Election Week or even, heaven help us, Election Month. Vote-by-mail counts, long lines at the polls, and efforts to make voting safe for everyone despite the coronavirus are expected to slow results. Given the stakes, Brennan Center Senior Fellow Daniel Okrent, who spent years editing major magazines and served as the first public editor at the New York Times, has some words of advice

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for his colleagues in the news media: don’t engage in the usual cutthroat competition to announce the winner first.

Instead, the news media should have only one metric for success, and that’s “being certain that all the votes that count have been counted” before declaring either Joe Biden or Donald Trump president. The need for such due diligence and media restraint has become a patriotic duty.

We live in polarized times, and the possibility that Fox News calls the election for Donald Trump, or MSNBC for Joe Biden, before all the absentee ballots are counted sends shivers down my spine. President Trump has demonstrated little interest in the norms of behavior that have been the underpinning of our centuries of peaceful transfers of power, and the potential for a full-blown constitutional crisis is real. As the New York Times’ Ben Smith put it

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, “the last barriers between American democracy and a deep political crisis may be television news and some version of that maddening needle on The New York Times website.”

For the media executives out there, being first and wrong could be catastrophic to the republic. Better to abide by the Hippocratic oath and promise to “do no harm.” Being last but right should be the only option if Election Day ends with no winner in sight and millions of mail ballots left to count.

Democracy

Trump Can’t Postpone the 2020 Election

Last Thursday, President Trump suggested a postponement of the 2020 elections. Let’s be very clear: he doesn’t have the power to do that. Election dates are set by a federal law dating back to 1845, and no U.S. presidential election has ever been postponed. Not for the War of 1812. Nor the Civil War. Nor the Spanish flu or World War II. Harold Ekeh and I see Trump’s suggestion for what it is: an outrageous break with American faith in democracy that aims to undermine confidence in election results. // Washington Post

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Our Clients Fight Back Against Trump Voter Suppression in Pennsylvania

In late June, the Republican National Committee and the Trump reelection campaign filed a lawsuit to make it harder for Pennsylvanians to vote by mail, based on the false premise that mail voting “invites fraud and undermines the public’s confidence in the integrity of elections.” But on Monday, a federal judge granted a motion to intervene to Citizens for Pennsylvania’s Future and the Sierra Club. In opposing the suit, the two groups, represented by the Brennan Center, argue that the RNC and Trump campaign seek to impose unnecessary burdens on Pennsylvanians’ ability to vote, particularly during a pandemic. // Read more

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What Congress Needs to Do Now to Secure Election Day

The Covid-19 pandemic has upended U.S. elections. As Congress considers a new coronavirus package over the next two weeks, it must allocate money that local officials can use to run elections safely and securely this fall. “What comes out of negotiations between the two chambers in the next few weeks may determine how secure our elections are from cyberattack this fall,” writes Larry Norden. // Slate

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FEC Dormant Heading into 2020 Election

For the second time in less than a year, the Federal Election Commission has been rendered essentially dormant. A commissioner’s recent resignation leaves the FEC without a quorum heading into one of the most fraught and expensive general elections in U.S. history. Dan Weiner writes that Congress can help fix the agency with reforms that will enable the FEC to better fulfill its three most critical responsibilities: enforcing campaign finance laws already on the books, issuing new rules to clarify legal obligations, and providing guidance to candidates and other political actors. // Read More

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New York Passes Ban on Immigration Arrests at Courthouses

Since 2017, Immigration and Customs Enforcement officers have made common practice of showing up at state and local courthouses to arrest people appearing in court for reasons unrelated to immigration. But a bill passed by the New York Legislature would prohibit ICE from arresting anyone who is going to or leaving a court proceeding. Douglas Keith writes that New York and states with similar laws have forged a clear path that states and cities can follow to ensure everyone in their communities has safe access to justice. // Read More

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Justice

Covid-19 Is Turning Prison Terms into a Death Sentence

While jails around the country have reduced their populations by close to 30 percent, state prison systems have largely focused on halting admissions and releasing only the most medically vulnerable, leading to negligible decreases in their populations. The result has been devastating. In just one California state prison, 19 people have died from the coronavirus. Texas has reported 107 total deaths in the state criminal justice system. “Refusing to take steps to reduce prison populations is negligent at best and active obstruction at worst,” write Lauren-Brooke Eisen and Ruth Sangree. // Read More

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Constitution

The Department of Homeland Security Needs Long Overdue Oversight

Even before the Department of Homeland Security deployed its military-styled law enforcement personnel into the streets of Portland, more robust congressional oversight of the department was long overdue. In the 18 years since its creation, DHS has ballooned, with a $50 billion budget and a workforce of more than 240,000 employees. It’s the country’s largest law enforcement agency, and oversight and accountability of this massive department have lagged far behind. Elizabeth Goitein writes that Congress should use the appropriations cycle “to confront a department run amok” and demand reform before approving another DHS budget. // Read More

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Police Infiltration of Protests Undermines the First Amendment

Using undercover police in connection with protests and protest movements further erodes trust between law enforcement and the communities they serve. Americans should feel free to protest without fear of surreptitious law enforcement monitoring. At a minimum, there should be more transparency and accountability accompanying the use of undercover police in protests. But a broader solution, Elizabeth Goitein and Sahil Singhvi write, would be to simply prohibit plainclothes police from attending protests. // Read More

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News

Ángel Díaz on how police use surveillance technology // Document Journal

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Elizabeth Goitein on arrested protesters barred from attending demonstrations pending their trials // NPR

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Elizabeth Howard on the need for more federal funds for the election // The Hill

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Sean Morales-Doyle on handling the influx of mail ballots // Spectrum News

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Faiza Patel on DHS’s enforcement of criminal regulations against protesters // Politico

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Myrna Pérez on the security of vote by mail // NBC News

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Michael Waldman on how to protect the integrity of elections during a pandemic // CBS'S THE DEBRIEF

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Wendy Weiser on Trump’s concerted effort to discredit the legitimacy of the election // New York Times

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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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