Your weekly source for analysis and insight from experts at the Brennan Center for Justice
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The Briefing
Donald Trump’s effort to undo the 2020 election is collapsing. His frenzied tweets and lawsuits have had a common thread: an ugly effort to delete the votes of the Black people living in major cities. It’s a startling escalation of the voter suppression we’ve had to fight for years.
After the election, Trump’s supporters mobbed vote-counting centers in big cities like Detroit, Milwaukee, and Philadelphia shouting “stop the count.” Trump said “bad things happen in Philadelphia” and that it is a “mountain of corruption.” In Detroit, his campaign filed a lawsuit claiming people wearing Black Lives Matter shirts intimidated poll observers. In Wisconsin, his campaign singled out Milwaukee for wild allegations of impropriety.
Subtle, this is not.
Trump and his allies make a toxic argument. White people’s votes, or “people who vote for freedom” as Sidney Powell put it at the campaign legal team’s farcical press conference last week, matter more than Black Americans’ votes. (Powell was fired over the weekend for being too conspiratorial for even Trump.)
Of course, the 2020 election was remarkably clean and well run, as the country’s top election security officials have confirmed. That’s why Trump’s lawyers under sworn oath, like Rudy Giuliani, tell judges their cases don’t allege voter fraud. His bid to pressure state legislatures to reject the voters’ decision failed next. Now the General Services Administration has finally agreed to give the Biden-Harris transition the legally required access and resources.
But we will all live with the consequences of these weeks. Tens of millions of people now believe the election was rigged. Trump’s political followers are fully in thrall to their own conspiracy theories. All this suggests a new push to restrict voting rights across the country.
If the push to disenfranchise Detroit, Philadelphia, and Milwaukee suggested a new wave of voter suppression, the failure of that effort teaches us something, too. For starters, thank the organizers: When Republican members of the Wayne County, Michigan, canvassing board refused to certify the results, they faced a roaring response from hundreds of citizens. Courts, meanwhile, made their rulings based on the law, not politics. Businesses and conservative military leaders demanded that Trump allow the transition to begin, for the sake of public health and the country. And election officials from both parties became unlikely public heroes as they stood up to criticism and death threats to carefully count the votes.
In our anger over Trump’s abuse, let’s hope it kindles an incandescent voting rights movement that can win reform so this can’t happen again. Let’s turn anger into action.
Democracy
The Supreme Court’s “Breathtakingly Radical” New Approach to Election Law
In the weeks before Election Day, the Supreme Court weighed in on more than a dozen cases in a way that many portrayed as a mixed bag for voting rights — allowing voting expansions to stand in some cases and sharply curtailing them in others. But in all of the cases, regardless of whether the Trump campaign won or lost, the justices dramatically rolled back Americans’ voting rights in ways that could do permanent harm unless Congress steps in. Wendy Weiser and Daniel Weiner walk through the damage and how, by passing H.R. 1, Congress can take the lead. // Politico
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The Challenge of Black Patriotism
Black patriotism is an expression of national praise and chastening drawn from the same well. “It cannot know only uncritical adoration because history and lived experience remind us the nation has often been too cruel, and it cannot be only sharp tongues and elbows because our work and faith have had a hand in America’s existence and evolution,” writes Theodore Johnson in a powerful new piece. “Black patriotism does not ask if America is irredeemably racist — it asks if America is interested in redemption.” // New York Times Magazine
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Justice Alito and Supreme Court Ethics
On November 12, Justice Samuel Alito gave a controversial speech to the Federalist Society, an influential conservative legal group with close ties to the judiciary. It was an unusually political speech for a justice at a time of growing scrutiny about the Supreme Court’s public legitimacy. Bemoaning what he characterized as growing threats to free speech and religious liberty, Alito took aim at same-sex marriage, abortion rights, and restrctions imposed to prevent the spread of Covid-19. The speech drew widespread criticism from legal scholars, advocacy groups, and senators, who suggested that Alito exercised poor judgment and may have crossed ethical lines. As Janna Adelstein points out, the episode highlights the fact that members of the Supreme Court are the only judges in America who don’t have to adhere to a code of ethics. // Read More
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Justice
The Data that Can Make Prosecutors Engines of Criminal Justice Reform
Breonna Taylor, George Floyd, and Ahmaud Arbery are a few of the recent victims of the criminal justice system’s failure to honor human life — especially the lives of Black Americans. While much of the demand for systemic change focuses on the police, it’s important to also look at the immense power that prosecutors wield. In prosecution, the metrics of success often end up reflecting numbers such as convictions and sentence length — factors that do not reflect a community’s health and wellbeing. That’s why a team of researchers created the Prosecutorial Performance Indicators, which assess prosecutorial progress toward achieving broad goals including community safety, wellbeing, fairness, and justice.
“If we are serious about transforming the criminal justice system ... using old habits and metrics of success aren’t going to cut it,” writes Melba Pearson, director of policy and programs at the Center for the Administration of Justice at Florida International University and member of the Law Enforcement Leaders project. // Read More
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News
Theodore Johnson on overcoming threats to democracy // Politico
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Lawrence Norden on threats to election officials // Frontline
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Myrna Pérez on the importance of conceding // NPR
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Michael Waldman on Trump’s amateurish legal strategy // Politico
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Wendy Weiser on Trump’s Michigan election ploy // Yahoo News
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Daniel Weiner on how Trump’s efforts to flip election results are a form of voter suppression // ABC News
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Thomas Wolf on the challenges with the 2020 Census // WhoWhatWhy
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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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