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

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The Briefing

Alexis de Tocqueville, visiting the young United States in 1835, memorably wrote, “There is almost no political question in the United States that does not sooner or later resolve itself into a judicial question.” Litigiousness is in our national DNA.

This year, a blizzard of voting lawsuits swirls around the election. The Trump campaign and Republican National Committee have filed suits to restrict access to voting — everything from stopping secure drop boxes to limiting the days when ballots can be received. Voting rights groups and Democrats have sued to change the rules to ease voting. All told there are 137 cases underway or on appeal.

With two weeks to go to Election Day, a few things are clear.

First, there’s a clear pattern: courts are ruling, more often than not, for voting rights and expanded access. But there’s another pattern emerging, too, identified in the New York Times

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this week: federal appeals courts, stocked with Trump appointees, are blocking many of those rulings.

As my colleague Wendy Weiser told the Times, “There has been a very significant number of federal voting rights victories across the country and those have in the last week or two — many if not most — been stayed by appellate courts. We’re seeing the brakes being put on the voting rights expansion at the appellate level in these jurisdictions, in many cases in ways that won’t be remediable before the election.” It’s an ill omen for what the courts will look like in years to come.

In any case, as many worry about disputes after Election Day, many of those issues will be resolved before November. Just as voting has started early, the “post-election” lawsuits have started, too.

The Brennan Center has been involved in several key ongoing cases.

Last week, we saw a big win for Texas voters

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. Earlier this month, Gov. Greg Abbott attempted to bar election officials from providing more than one drop-off site for mail-in ballots per county prior to Election Day, regardless of a county’s size or population density. In a county like Loving, with a population of 169, that’s not a problem. But in Harris County, with 4.7 million residents, it’s absurd and unsafe.

We, along with our partners Dechert LLP, sued Abbott in state court on behalf of the Anti-Defamation League, Common Cause Texas, and a voter. We obtained a favorable decision in the trial court. The governor has appealed the decision, however, putting the trial court’s decision on hold. We’ve asked the appeals court to bar enforcement of Abbott’s order while the appeals process plays out. This would mean that the state can open the drop boxes that it was forced to close.

We’ve seen wins in Pennsylvania, too. A federal court recently sided

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with voters by upholding the use of ballot drop boxes and declining to impose unwarranted new restrictions. And last night, the Supreme Court also let stand

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a ruling that lets election officials count mail ballots received up to three days after Election Day.

Another common feature to these cases: often they cite bogus claims that voting by mail invites fraud. But voters should not be discouraged. As Lisa Danetz explains

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, a range of security features to protect mail ballots from misconduct.

There are two weeks left before November 3, and turnout is already hitting record highs. Don’t forget: it’s American voters who pick elected officials, not judges.


Democracy

How Small Donor Public Financing Could Advance Race and Gender Equity in Congress

More women of color are running for Congress than ever before, but they continue to be significantly underrepresented among congressional candidates. One reason: they have limited fundraising networks. A new study by Chisun Lee, Gregory Clark, and Nirali Vyas shows that a small donor public financing program — a key provision of the For the People Act passed by the House — could ease these disadvantages. And it would help all candidates focus more on constituents and less on large donors while still raising competitive sums. // Read More

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Georgia Continues to Tempt Fate this Election Season

Last week in Georgia, some voters waited eight hours in order to cast their ballots, partly because of bandwidth problems in the state’s online check-in system. Georgia faces another technical challenge: during a pre-election test in September, officials found a software defect that caused some candidates to disappear from the touchscreen. The secretary of state’s office downplayed the issue, but the risks are real. As Gowri Ramachandran writes, it’s critical that each polling place is equipped with enough backup paper ballots for at least three hours of voting during the peak turnout time. // Read More

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Missouri’s Amendment 3 Is Deceptive and Discriminatory

In 2018, Missouri voters overwhelmingly voted for redistricting reform. Congratulations! But some of the state’s politicians have something else in mind. They put Amendment 3 on the ballot, which would replace the popular reforms with a discriminatory redistricting system unlike anything this country has ever seen. Most significantly, it would open a way for redistricting to count only citizens when drawing legislative lines. An open letter from the Brennan Center and other national civil rights organizations details just how destructive the amendment would be for Missouri. // Read More

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Election Officials Are Prepared

Shhhh... states have made quiet but steady progress to get ready for this unusual election. Mail voting is far more accessible than ever before, early voting options have expanded, and a huge number of poll workers have been recruited. States have also made considerable progress in the past four years to prevent, detect, and recover from cyberattacks and technical failures. Still, write Lawrence Norden and Derek Tisler, our election system “shouldn’t need last minute heroics from election officials and public volunteers in counties all across the nation in order to hold secure and accessible elections.” // Foreign Affairs

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Trump’s Tax Records Could Point to Campaign Finance Violations

According to Federal Election Commission records, a $10 million contribution to the Trump 2016 campaign was paid 11 days before the election from Trump himself. This payment was out of the ordinary compared to Trump’s other contributions, which were $2 million or less over the summer and fall of 2016. As Brennan Center Fellow Ciara Torres-Spelliscy writes, the tax documents reviewed by the New York Times raise multiple legal issues. // Read More

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Constitution

The NYPD Has a Surveillance Problem

A federal class-action lawsuit filed last year alleges that the New York City Police Department has stopped and searched mostly Black and Latino people, and even after finding nothing illegal on them, demanded their IDs and ran them against databases to crosscheck for arrest warrants or other information like gang affiliation. “There’s a potential use of surveillance, where it might be posed as a neutral alternative to biased police practices, but ultimately, if they’re being deployed in the same neighborhoods to achieve the same effect, things won’t necessarily change,” warns Ángel Díaz. // City & State

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Coming Up

VIRTUAL EVENT: Alicia Garza in Conversation with Lisa Coleman

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Thursday, October 22 | 12:00 p.m.–1:00 p.m. EDT

In her new book, Alicia Garza, cofounder of Black Lives Matter, recounts her experiences organizing transformative movements. She’ll discuss the lessons she’s learned with Lisa Coleman, NYU’s chief diversity officer and senior vice president for global inclusion and strategic innovation. Produced in partnership with NYU Skirball, NYU Votes, NYUWomxn100, and the Center for Black Visual Culture and Institute for African American Affairs. RSVP today

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VIRTUAL EVENT: Democracy and the Electoral College

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Tuesday, October 27 | 5:30 p.m.–6:30 p.m. EDT

With the presidential election around the corner, it’s worth considering the past, present, and future of the Electoral College. Whose voices does it elevate, and whose does it diminish? To what extent did racial animus drive its creation? And how likely is it that presidential elections in the future will be decided by the popular vote? CNN Senior Political Analyst John Avlon will explore these questions with law professor and Brennan Center Fellow Wilfred Codrington III, and author and New York Times columnist Jesse Wegman. New York Times reporter and pro bono historian for Federal Hall's Conservancy Sam Roberts and Brennan Center President Michael Waldman will introduce this program. RSVP today

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News

Sean Morales-Doyle on Florida’s purging of people with past convictions from voter rolls // Tampa Bay Times

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Lawrence Norden on ballot design // Washington Post

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Myrna Pérez on a safe and smooth Election Day // NPR

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Yurij Rudensky on redistricting in Missouri // Columbia Missourian

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Michael Waldman on obstacles to voting // NY1

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Wendy Weiser on the legitimacy of the election // Washington Post

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Jennifer Weiss-Wolf on Amy Coney Barrett and working mothers // 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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