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

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The Briefing

This is a truly unsettling moment for America. The coronavirus is surging around the country, and the Trump administration has now admitted “we’re not going to control the pandemic.” “Covid, Covid, Covid,” as President Trump said at a rally days ago.

And just yesterday, the Supreme Court in a 5–3 decision rejected Democrats’ request to count mail-in ballots postmarked by Election Day but arriving six days later because of mail delays. What was more distressing, however, is what Justice Brett Kavanaugh wrote in his concurring opinion. According to the justice, there will be suspicion “if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”

There’s nothing to “flip” here. There’s no official election result until all valid votes are counted. And there’s no fundamental difference between voting in person or voting by mail. All votes should be counted, particularly when people are flocking to mail-in ballots to protect themselves from a disease that has taken the lives of over 220,000 Americans.

In other words, Kavanaugh is trafficking in the same misinformation and innuendo about mail-in voting — that it’s somehow inferior or prone to abuse — that Trump has made a centerpiece of his campaign. I shouldn’t need to emphasize that voting by mail is not second class, and there are ample security features to prevent misconduct

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, as Lisa Danetz writes.

Voters by the millions have already received this message, and they’re voting in record numbers.

A startling 70 million people have voted so far, pointing toward what could be the highest turnout since 1908. The high in-person turnout is heartening, and it highlights just how important it is for polling places to be well-stocked with items like provisional ballots. Gowri Ramachandran and Turquoise Baker describe the importance of provisional ballots for voters in some states who’ve changed their minds about voting by mail

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When I write to you next Wednesday, for a special post-Election Day edition of the Briefing, it’s unclear whether we’ll have final results. Either way, those results will be unofficial. This is not unique to this year — the full process for counting votes takes weeks

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after every election, and Edgardo Cortés, Elizabeth Howard, and Derek Tisler describe the series of steps that will take place.

Whatever happens, don’t listen to the disinformation coming from the highest levels of our government. Just vote in defiance of all those who are trying to deny you of your fundamental democratic right.

Democracy

5 Things You May Not Know About Election Officials

Local election officials are the unsung heroes of democracy. This year, they’ve been tasked with an Olympian feat: administering a presidential election during a pandemic without adequate funding, while implementing ever-changing legislative mandates and judicial decisions. “Being an election official right now is like being pushed into a batting cage without a bat and all of the pitching machines are being aimed at you,” said Tina Barton, the city clerk in Rochester Hills, Michigan. Elizabeth Howard, a former election official herself, describes this crucial work. Despite the odds stacked against them, election officials across the country are making it work. They deserve our thanks. // Read More

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Trump’s Message to Black Voters: Vote For Me (But Really, Don’t Vote)

Encouraging Black turnout on the one hand and dissuading it on the other are two prongs of the same strategy of voter depression. In a Washington Post op-ed, the Brennan Center’s Theodore R. Johnson and Harvard Kennedy School’s Leah Wright Rigueur argue that President Trump is employing voter depression as a campaign strategy — convincing voters they’re underappreciated and poorly served by their preferred party, making symbolic overtures to them to counter accusations of intolerance or exclusion, and eroding their faith in electoral processes. “It remains to be seen if voter depression will be effective in 2020,” they write. “More worrisome, perhaps, is what it reveals: that politicians are often less concerned with responding to the policy demands of Black voters — and more interested in limiting their participation.” // Washington Post

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Justice

Justice on the Ballot

With criminal justice on the ballot nationwide, we’ve compiled a list of 40 ballot initiatives and law enforcement electoral races worth watching on Election Day. This page provides short summaries of each criminal justice ballot initiative or race, with fresh and updated links to media coverage of the contests culled from reliable news sources. From police oversight to immigration roundups in “sanctuary” jurisdictions, this election will have far-reaching consequences for federal criminal justice issues and state and local policies. // Read More

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Uncovering the Hidden $372 Billion Cost of Our Criminal Justice System

The slightest brush with the law can lead to a lifetime trapped in an inescapable cycle of poverty. Approximately $372 billion in earnings are lost in the United States each year for those who have a criminal conviction or have spent time in prison — enough to close New York City’s poverty gap 60 times over. It’s no secret that the criminal justice system has economic implications for those who serve time, but from our new report, we now understand just how devastating those impacts are. Robin Hood’s Wes Moore writes, “The systemic inequities of our criminal justice system are glaring, and we cannot continue to turn a blind eye.” // Time

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Constitution

The Serious Domestic Terror Threat of White Supremacists

Earlier this month, Chad Wolf, the acting secretary of homeland security, released his department’s annual assessment of violent threats to the nation. In a foreword, he wrote that he was “particularly concerned about white supremacist violent extremists who have been exceptionally lethal in their abhorrent, targeted attacks in recent years.” But while federal authorities may be showing a new resolve to tackle the problem, experts warn that the extremists are showing even greater determination. “Now they feel sanctioned. They think, ‘my violence is no longer criminal, it’s allowed, it’s what the president wants us to do,’” said Brennan Center Fellow Michael German. // Guardian

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News

Ángel Díaz on how social media surveillance disproportionately hurts people of color // Intercept

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Douglas Keith on the politicization of state supreme courts // ABC News

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Michael Li on redistricting and Texas House races // Texas Observer

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Lawrence Norden on the importance of good ballot design // CBS This Morning

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Myrna Pérez on voter suppression // Texas Observer

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Yurij Rudensky on who will be counted if Missouri’s discriminatory redistricting referendum passes // Columbia Missourian

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Wendy Weiser on the Supreme Court and the election // Washington Post

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Thomas Wolf on Trump’s attempts to exclude undocumented immigrants from the apportionment // Washington Post

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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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