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

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The Briefing

As Democratic presidential hopefuls take the stage in Houston for third primary debate this Thursday, Brennan Center experts will be listening for how the candidates plan to advance the United States’ systems of democracy and justice. In the previous debates, no questions were asked about voting rights, the Constitution, or foreign election threats. As the winnowed crop of candidates grapple with core issues, will these vital topics come up? The Brennan Center has published a list of 10 solutions ([link removed]) that would make elections fairer and freer, help end mass incarceration, and make the country’s institutions of governance more responsive to the people. Any reform-minded presidential candidate who wants to offer grand improvements to our democracy should start here.

Constitution

How the FBI Became a Secretive Domestic Intelligence Agency

Brennan Center Fellow Michael German spent 16 years serving as an FBI special agent. In his new book, Disrupt, Discredit, and Divide: How the New FBI Damages Democracy, released today, he recounts how the FBI transformed in the aftermath of the 9/11 attacks from a law enforcement agency, once famous for prosecuting crime and corruption, into arguably the most secretive domestic intelligence agency in U.S. history. German also explains how the FBI has targeted Muslims, foreigners, communities of color, and dissidents while ignoring the threat of white nationalism by deprioritizing the investigation and prosecution of far-right violence. In a starred review, Kirkus calls it "a well-documented exposé explaining how 9/11 transformed the FBI ... Important reading for our current time, especially as the Mueller Report continues to circulate." // READ MORE ([link removed])

U.S. to Use Fake Social Media to Check People Entering Country

Officers in U.S. Citizenship and Immigration Services are now authorized to create fake social media accounts to monitor individuals applying for visas, green cards, and citizenship. But it is unclear how the fake social media accounts would work given that impersonation violates the terms of use for platforms like Facebook and Twitter. The Brennan Center's Michael German argued that it is important for strong guidelines to be in place and for lawmakers to ask lots of questions to ensure there are no abuses. “It’s easy to conjure up a use where the use is appropriate and entirely necessary, but also where it could be abused,” said German. “It should only be used in cases where absolutely necessary.” // AP ([link removed])


Democracy

A Push to Secure the 2020 Elections

With the 2020 primaries just five months away and the threat of foreign hacking looming, election officials across the country are scrambling to buy new voting equipment. According to a recent Brennan Center analysis ([link removed]), nearly 90 percent of Americans will cast their ballots on paper-based systems in 2020, compared with 80 percent in 2016. But that still means about 16 million Americans will vote using paperless machines, which do not create a paper trail that either voters or election officials can review.

“Election security experts and intelligence community members agree that paperless voting machines are insecure and that we need to transition to paper-based voting systems across the country to ensure that — in the event of a question or a concern — we can go back and look at the paper records for every vote cast,” said Liz Howard, counsel for the Brennan Center’s Democracy Program. // NPR ([link removed])

State Courts and Gerrymandered Maps

A state court panel in North Carolina ruled last week that the state’s legislative maps were examples of “extreme partisan gerrymandering” and unconstitutional. The ruling occurred in the aftermath of the U.S. Supreme Court’s June decision that federal courts have no role to play in even the most extreme cases of partisan gerrymandering. The North Carolina ruling “suggests even though the federal courts have stepped away from partisan gerrymandering, there may be remedies in state courts, and people should look at their state constitutions,” said Michael Li, senior counsel for the Brennan Center’s Democracy Program. // VOX ([link removed])

Election Security in Rhode Island

How can we know if an election has, in fact, been subject to a cyberattack? The best way is what’s called a “risk-limiting audit,” which can check after the fact for irregularities. Common Cause, Verified Voting, and the Brennan Center have released a new report ([link removed]) that outlines how Rhode Island should implement a system for auditing election results. Rhode Island is the second state after Colorado to require risk-limiting audits, which will be implemented for the first time during the 2020 presidential primaries. The risk-limiting audit is one of the most important tools states can use to bolster voter confidence and secure elections for 2020 and beyond, said Wilfred Codrington, counsel for the Brennan Center’s Democracy Program. // AP ([link removed])

Justice

The 1994 Crime Bill and Beyond: How Federal Funding Shapes the Criminal Justice System

September 13 marks 25 years since the signing of the Violent Crime Control and Law Enforcement Act of 1994, the most far-reaching crime bill Congress has ever passed. Now better known as the 1994 crime bill, the law has a complicated legacy and has been criticized as a major driver of mass incarceration in the United States. Undoing that legacy will require confronting the effects of decades of federal funding to spur draconian responses to crime. Today, there are numerous proposals, such as the Reverse Mass Incarceration Act ([link removed]), that aim to undo the damage caused by the 1994 crime bill. // READ MORE ([link removed])

Coming Up

- This Thursday, the Brennan Center hosts ([link removed]) noted civil liberties lawyer Burt Neuborne in New York for a discussion on the structure of the U.S. constitutional system and its ability to withstand authoritarianism. Neuborne was formerly the center’s legal director.

- Also on Thursday, ABC in partnership with Univision host the third round of the 2020 Democratic presidential debates.

- Next Monday, September 16, Brennan Center fellow and former FBI special agent Michael German will discuss ([link removed]) his new book, “Disrupt, Discredit, and Divide: How the New FBI Damages Democracy” ([link removed]), in conversation with The Atlantic’s staff writer Adam Serwer in New York.


News

- Michael German on how federal authorities are handling white supremacist groups // PROPUBLICA ([link removed])

- Michael Li on the merits of a new anti-gerrymandering proposal in Pennsylvania // PHILADELPHIA INQUIRER ([link removed])

- Daniel Weiner on the implications of the Federal Election Committee’s lack of quorum due to the recent resignation of the agency’s vice chairman // NBC NEWS ([link removed])

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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