Your weekly source for analysis and insight from experts at the Brennan Center for Justice
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The Briefing
Yesterday, the Census Bureau released the first results of the 2020 census. We learned the populations of each state and how many seats each state will get in the House after the next redistricting cycle. After the past few years, we should breathe a silent prayer of gratitude that it was all... normal.
The stakes politically couldn’t be higher, meaning an accurate count is supremely important
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Even a slight undercount could cost a state a congressional seat. And in New York, we learned, it did. Had 89 more New Yorkers been counted, the state would not have lost one of its 27 members of the House.
But the census isn’t just about political power — it’s all about resources, too. In addition to congressional seats and data with which maps are redrawn, census data determines the distribution of over $1.5 trillion annually in federal funds for programs such as healthcare, food assistance, and education.
In other words, the census is also about public goods and how they’re distributed.
The nation’s population growth over the past 10 years came entirely from nonwhite communities. Latino, Black, and Asian American citizens will account for 80 percent of the increase in eligible voters between 2010 and 2020. For communities of color to receive political representation and critical investments commensurate with their size, they must be counted fully. The census has historically failed to do so, contributing to entrenched inequality.
These once-in-a-decade numbers come after an unusually challenged census: a pandemic, hurricanes, and wildfires that displaced people throughout the country and made canvassing door-to-door harder, on top of underfunding and unprecedented political interference
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from the Trump administration.
But not all signs point to an inaccurate count: the Supreme Court blocked the Trump administration’s attempts to add a citizenship question, and advocates prevented the Trump administration from skipping essential counting time. Nonprofits and state and local governments worked tirelessly for years to encourage full participation in the census.
By the end of September, we’ll see the detailed data set that includes demographic information, including race and ethnicity. Will we get an accurate count of our nation’s growing communities of color, ensuring they receive the political power and funding they’re owed? Or will the apportionment totals cover up racial or ethnic undercounts, like they did in 2010?
Like I said, the census’s results are a big deal.
Democracy
The Assault on Voting Is an Assault on Local Democracy
Last spring, in the weeks and months after life was first reshaped by the coronavirus pandemic, local governments stepped up to help save the 2020 election. Now, after an election in which both mail voting and overall turnout soared, several Republican-led state legislatures are desperate to restrict voting. And as part of that effort, they’re looking to clamp down on local governments’ authority to make voting easier — or in some cases, to run elections at all. Two states have already done so, and efforts in more are underway, writes Brennan Center Fellow Zachary Roth. // Read More
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The Supreme Court’s Looming Dark Money Decision
For more than 40 years, arguments against “dark money” have won at the Supreme Court. Disclosure has been one area where the justices have allowed regulation. Now, however, the Court could reinforce the growing influence of this type of secret funding for political campaigns. In Americans for Prosperity Foundation v. Rodriguez, argued yesterday, the justices are considering the right to confidentiality for donations to nonprofits. Their decision could have significant implications given how corporations and wealthy individuals hide their role in politics by routing their money through opaque nonprofits, writes Brennan Center Fellow Ciara Torres-Spelliscy. // Read More
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Justice
Losing Our Punitive Civic Religion
The United States is experiencing a remarkable wave of interest in reforming our criminal legal system. Even bold change won’t get far unless we rethink what we want and expect from criminal law and punishment, writes Berkeley Law professor Jonathan Simon in the latest essay from the Brennan Center’s Punitive Excess series
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. “Centuries of enthusiastic innovation in both have instead left us not with meaningful change,” he argues, “but with a set of powerful punitive myths that have become a genuine American civil religion — one that offers criminal accountability as a kind of sacrament of legal fidelity, and state punishment as a primary source of individual correction and social improvement.” // Read More
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Constitution
The Government Can’t Seize Your Digital Data — Except By Buying It
Three years ago, the Supreme Court issued a ruling that appeared to reaffirm Americans’ right to privacy in the digital age. But now, government agencies have discovered ways around what seemed to be robust constitutional protections for sensitive location information, engaging in creative legal interpretations and exploiting gaps in the law to buy Americans’ personal information from intermediaries. “Besides privacy red flags, this phenomenon raises civil rights concerns,” writes Elizabeth Goitein. “When government officials don’t have to show probable cause of criminal activity — or provide any information at all to a judge — they’re much more likely to fall back on conscious or subconscious prejudices, targeting people of color and other marginalized communities.” // Washington Post
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Coming Up
VIRTUAL EVENT: Immigration Reform: Presidential Power and the Road Ahead
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Wednesday, May 5 | 12:00 p.m.–1:00 p.m. ET
The immigration policies of the last four years have elicited tremendous political controversy, and in their recent book, The President and Immigration Law
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, Professors Adam B. Cox of NYU School of Law and Cristina M. Rodríguez of Yale Law School show how we got here. Cox and Rodríguez will join Cecilia Muñoz, former director of the White House Domestic Policy Council under President Obama, for a conversation on the road ahead for immigration policy and reform. RSVP today
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This event is produced in partnership with New York University’s John Brademas Center.
VIRTUAL EVENT: Fighting for Fair and Impartial Courts
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Thursday, May 6 | 4:00 p.m.–5:00 p.m. ET
This panel discussion will bring into stark relief some of the assaults on judicial independence and diversity today. The Brennan Center’s Alicia Bannon moderates with three distinguished experts and advocates: Patrick Berry (Brennan Center), Kathryn Personette (Pennsylvania Budget and Policy Center), and Eric Lesh (LGBT Bar Association). RSVP today
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This event is produced in partnership with the Center for Brooklyn History.
VIRTUAL EVENT: New American Dream: Five Weeks of Virtual Town Halls On Disrupting Systemic Racism and Envisioning the Nation Beyond It
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Wednesdays, April 28–May 26 | 5:00 p.m.–6:30 p.m. ET
This series of virtual forums sponsored by the public television station WNET will gather thought leaders to discuss the impact of white supremacy and state-backed racism on America today. Examining systemic racism in relation to voting rights, artificial intelligence and genetic data, journalism, antiracism, and cultural narrative, the events will focus on strategies and solidarity, with an understanding of history and eyes toward the future. Learn more
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Want to keep up with Brennan Center events? Subscribe to the events newsletter.
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News
Alicia Bannon on Derek Chauvin’s trial // Wall Street Journal
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Rachel Levinson-Waldman on the Postal Service monitoring social media activity // Yahoo News
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Michael Li on reapportionment numbers // USA Today
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Sean Morales-Doyle on voting rights restoration in New York // WRAL
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Yurij Rudensky on how to spot a gerrymandered district // Independent
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Michael Waldman on the Supreme Court’s new Second Amendment case // New York Times
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Thomas Wolf on the lawsuit for a proper census count // Courthouse News
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Have an issue you'd like us to cover? Feedback on this newsletter? Email us at
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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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