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

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The Briefing

There have been many contentious topics in presidential debates. Health care. The economy. Quemoy and Matsu. (Yes, two islands off the coast of China that were a major flashpoint in the Kennedy-Nixon debate in 1960.)

Rarely has the health of our democracy been one of the areas for discussion

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But in 2020, no topic is more vital. Media reports indicate that moderator Chris Wallace will ask about voting and election integrity.

So expect a fusillade of falsehoods

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about voting, before the biggest audience yet. As we are all too painfully aware, Trump has claimed the election is “rigged” and “the most corrupt ever,” all because states have taken necessary steps so citizens can vote in a pandemic. Expanded vote by mail. Secure drop boxes. Early voting. Safe in-person voting. And so on. Anyone who follows the Brennan Center’s work is familiar with what we think should be done.

It’s really important to remember, as you settle in to hear the debate, this core fact: what Trump says about voter fraud is not a claim, or a charge. It’s a lie.

There simply is no widespread voter fraud in American elections, whether by mail or in person. Study after study after study has shown it. A recent Washington Post story noted

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that every time courts have examined this myth, they conclude it’s not true. As the Brennan Center has shown, you are more likely to be struck by lighting than to commit voter fraud in the United States. Vote by mail is secure, and citizens can cast their ballots with confidence.

So why does this myth live on? As Mark Twain said, “A lie gets halfway around the world before the truth has time to put on its boots.” People are skeptical and cynical about politics. There’s barely concealed racism behind much of it too, as mysterious immigrants are supposedly voting improperly. The falsehood thrives because politicians wield it to make it easier to restrict voting.

What’s the answer? We should back up those election officials of both parties who are working hard to make this extraordinary election happen under extraordinary circumstances. The media must find ways to call out these lies for what they are. And above all, whatever party or candidate you support, citizens should vote — early if possible. That’s the best way to ensure that our voices are heard and the promise of our democracy lives on.


Democracy

Renewing the Civil Rights Division

The Justice Department’s Civil Rights Division has been a vital force for equality since it was created in 1957. The Supreme Court’s 2013 Shelby County decision took away its most effective tool — its duty to “pre-clear” voting law changes in states with a history of discrimination. But we can’t blame the Supreme Court alone for the division’s current torpor.

As I testified last week before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, the division has retreated from its mission. The Trump administration is the first since the enactment of the Voting Rights Act of 1965 to not bring a single case under the landmark legislation. During the George W. Bush and Obama administrations, by contrast, the government brought 58 enforcement cases. In key cases in Texas and Ohio, the Justice Department abruptly switched sides. The division was central to concocting the pretext for adding a citizenship question to the 2020 Census, a ruse so transparent that the Supreme Court blocked it. Lately Attorney General William Barr has claimed that voting by mail leads to fraud and coercion (a lie) and has defended Trump’s threats to use federal law enforcement personnel on Election Day to quell “riots” (illegal).

Congress can step in, passing the John R. Lewis Voting Rights Advancement Act to give the Civil Rights Division the tools it needs. Officials can focus on today’s real voting rights threats, such as election security and long lines in Black and brown communities. And Congress can make sure that the White House doesn’t improperly lean on the Justice Department. // Read More

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Court Rules Trump Administration Cannot Rush the Census

A federal judge has ruled that the census count will continue through October 31 as the Census Bureau had planned, and that its data processing will continue under a timeline that allows for a full, fair, and accurate overall tabulation and reporting of the total population. The district court’s ruling blocked an accelerated census timeline from the Trump administration that would have cut a crucial four weeks from the actual count and four months from the time for processing and reporting the data. “The ruling is a significant victory in the ongoing fight to save the 2020 Census from a critical undercount of our country’s communities of color,” said Thomas Wolf. “The census must count everyone regardless of their race, ethnicity, or citizenship status. To do that in the face of Covid-19, hurricanes, and wildfires, the Census Bureau needs all the time it asked and planned for in the spring.” // NPR

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Senate Procedures Offer No Hope for Democrats on Supreme Court Nominee

Many have paused over the past week to grieve the passing of Supreme Court Justice Ruth Bader Ginsburg and to contemplate her towering legacy. Someone who did not pause, however, was Senate Majority Leader Mitch McConnell. Shortly after Ginsburg’s death was announced, he made clear that he would work with President Trump to fill her seat. “As Republicans move with alacrity to nominate and confirm a new justice, many have wondered what possible procedural avenues might be available to Democrats to stop or at least slow down the runaway train,” writes Brennan Center Fellow Caroline Fredrickson. “I would personally support such efforts, but unfortunately, there are truly no promising paths.” // Just Security

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Our Election System Is Resilient but Still Has Room for Improvement

How prepared are we for a breakdown in our election infrastructure? The good news is that there has been substantial progress, even in the last few months, to implement the kind of backup and security features that should allow all voters to cast ballots that will count, even in the event of a cyberattack or other unforeseen system failure. At the same time, there is still more that many jurisdictions can and should be doing to secure our elections over the next few weeks, including post-election audits, having electronic pollbook backups, and backup staffing measures, write Lawrence Norden, Derek Tisler, and Lisa Danetz. // Read More

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A Bill to Protect Democracy

Last week, the Protecting Our Democracy Act was introduced in Congress. Building off the ethics and rule of law provisions of the For the People Act (H.R. 1), this bill is an important step towards reinforcing basic safeguards against presidential abuses, restoring checks and balances between the legislative and executive branches, strengthening government accountability, and protecting our elections. // Read More

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Justice

Why Mail Service Is So Important to People in Prison

To get a sense of just how important access to consistent and timely mail is for those behind bars, Leily Arzy and Alia Nahra asked Tami Eldridge and Kevin Hammerschmidt about their experiences while incarcerated and the role that mail plays in day-to-day life in prison. Says Eldridge, “Throughout the 19 years of my now 21 years of incarceration, my children’s lives have become tangible with every piece of mail that I have received.” // Read More

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Constitution

The NYPD Gang Database Must Be Audited

After a classmate’s death, grieving teens in New York City’s East Harlem neighborhood wore lanyards with the student’s picture around their necks. In response, the New York City Police Department labeled them a gang. Now the teens worry that they have been entered in the NYPD’s error-filled gang database — the result of ongoing and overbroad surveillance of Black and Latino communities. Last week, the Brennan Center joined with 31 organizations and academics to call on the NYPD inspector general to audit the gang database. // Read More

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Coming Up

VIRTUAL EVENT: Voting and Representation Symposium

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Thursday, October 1 & 8 | 12:00 p.m.–2:30 p.m. EDT

Stacey Abrams joins the Brennan Center, the NYU Law Review, and top democracy law scholars and practitioners in a two-day symposium starting this Thursday. Covid-19 has been a “stress test” for our democracy, exacerbating structural racism and inequality in our political system and shining a light on vulnerabilities in our institutions. This symposium will tackle critical questions about how to preserve democracy and protect the 2020 election in a time of emergency, as well as how to achieve a fair distribution of political power in the long term. Panels include “Pandemic Politics” and “Fair Representation in an Increasingly Diverse America.” For lawyers, CLE credit is available. RSVP today

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VIRTUAL EVENT: Reimagining the Rule of Law

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Tuesday, October 6 | 1:00 p.m.–2:00 p.m. EDT

Restoring xxxxxxs against abuses of power will be one of the most urgent tasks for the next Congress and president. This panel, featuring Preet Bharara (National Task Force on Rule of Law and Democracy co-chair), Janai Nelson (NAACP-LDF associate director-counsel), Donald B. Verrilli Jr. (former U.S. solicitor general), and Christine Todd Whitman (Whitman Strategy Group president), will discuss what’s at stake and what can be done to shore up protections for the rule of law in the federal government. RSVP today

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News

Michael German on white supremacy in law enforcement // Intercept

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Elizabeth Goitein on presidential emergency powers // Washington Post

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Michael Li on how suburbs play into the 2020 election // Business Insider

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Taryn Merkl on the lack of justice for Breonna Taylor // New York Times

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Myrna Pérez on which states may have legal battles related to the election // Atlantic

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Yurij Rudensky on the discriminatory Missouri redistricting ballot initiative // St. Louis Post-Dispatch

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Wendy Weiser on what could go wrong with the election // Economist

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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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