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

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The Briefing

It’s been six months since the presidential election, and Trump’s slander against the election is still corroding our democracy.

As Rep. Liz Cheney, the House Republican whip, tweeted, “The 2020 presidential election was not stolen. Anyone who claims it was is spreading THE BIG LIE, turning their back on the rule of law, and poisoning our democratic system.”

Unfortunately, Trump’s baseless claim has become a litmus test for Republicans

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It’s tragic. Those who spoke out against Trump’s lies are facing consequences. Sen. Lisa Murkowski, who called for Trump to resign after the January 6 insurrection and voted to convict him of inciting it, will face a primary challenger in 2022. Cheney has faced calls to step down from her leadership role in the House.

It’s not hyperbole to say that, because of Trump’s Big Lie, free and fair elections are under withering fire. The foundation of our democracy is being tested by a conspiracy theory. This is apparent in the over 360 bills moving through states that would make voting harder. And among those are 40 bills in 20 different states that would expand the powers of poll watchers.

This might seem innocuous. However, in these polarized times, it’s anything but. Republicans across the nation want to weaponize something that should be nonpartisan and strictly regulated.

Poll watchers are individuals who observe the election process — both at polling places and as ballots are reviewed and counted. Each state has its own laws on what watchers may and may not do, what qualifications and training they must have, who can appoint watchers, and how many can serve at a given location.

Most states have measures in place to protect against voter intimidation and harassment, but 33 of the recently introduced bills would give poll watchers more authority to observe voters and election officials, with fewer limitations on their actions. In Michigan, the New York Times reports

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, the Republican-controlled legislature wants to ban nonpartisan poll watchers in favor of party hacks.

What, you ask, could go wrong?

Additionally, 30 bills have been introduced to give poll watchers greater access to the ballot counting process, ballot processing activities, and voting data processing. Eleven of these bills are moving, and one, in Georgia, has already become law. Our new resource, “Who Watches the Poll Watchers?

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” describes these bills and their threat to our democracy.

Violence and intimidation at the polls are not exactly new. They were far too common throughout much of the country’s history. All across the country, partisans would brawl, and Black and immigrant voters would be driven away. (Recall that William Rehnquist’s confirmation for the Supreme Court was roiled over reports that he had gone up to Latino voters in Arizona, purporting to do ballot security, but actually trying to intimidate them.) But over the past half century or so, this bad habit actually largely went away. It has not been a widespread factor in our elections.

These proposals risk bringing back this ugly aspect of America’s past.

There’s no good reason to subject citizens exercising their constitutional right to vote to possible harassment and intimidation. We knew the damage caused by Trump and his Big Lie would last beyond the election. But it’s disheartening, to say the least, to watch it become a uniting factor and driver of policy for one of our country’s major political parties.

Our democracy deserves better.


Justice

NEW REPORT: Protecting Against Police Brutality and Official Misconduct

Excessive use of force by law enforcement, sexual abuse by public officials, and the denial of needed medical care to people in police or correctional custody undermine the rule of law, our government, and our systems of justice. For almost all incidents involving violence by law enforcement, there is one federal criminal law that applies: 18 U.S.C. Section 242. But the statute does not clearly define what conduct is a criminal act — only the circumstances under which a person, acting with the authority of government, can be held criminally responsible for violating someone’s constitutional rights. It need not be this way. Congress must revise Section 242 so it protects the rights of people who come into contact with public officials, writes longtime prosecutor Taryn Merkl. // Read More

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Crime, the Myth

If we are actually to create a society that is safe for everyone, we’ll profit from challenging our belief in the “reality” of crime, writes Emile DeWeaver of the Prison Policy Initiative in the latest installment of the Brennan Center’s series on punitive excess

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. DeWeaver pushes back against two common beliefs: that we punish people for committing crimes, and that crime is an act committed by an individual. “The truth is that we punish people less because of what they do and more because of who they are.” // Read More

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Democracy

Arizona’s Voter Suppression Bills Are Dangerously Close to Becoming Law

Republican-led efforts to rein in voter participation in the name of “election security” are advancing in Arizona. One of these efforts would make voting harder by purging voters from the “permanent early voting list,” which makes voting easier because voters on the list automatically receive their mail ballots without having to request them. And this bill, among others, are being considered during an unprecedented legislative “audit” of the ballots of Maricopa County, even though the county already conducted its own audit and confirmed the outcome of the 2020 election, writes Marian K. Schneider. // Read More

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Constitution

White House Rejects DHS Plan to Collect Social Media Data

Earlier this month, the White House office that reviews federal regulations rejected the Department of Homeland Security’s proposal to collect social media identifiers on travel and immigration forms. “Halting the DHS collection is a big deal, and we welcome it,” writes Harsha Panduranga. “The Biden administration, which is now conducting a review of whether collection of social media identifiers ‘meaningfully improved screening and vetting,’ should also end the State Department’s corresponding collection from about 14 million people who fill out its visa applications.” // Read More

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Student Free Speech Rights at the Supreme Court

In 2017, Brandi Levy, then a 14-year-old student at a small public school in Pennsylvania, tried out for the varsity cheerleading squad. After she learned she didn’t make the team or get her preferred spot on the school softball team, she posted a photo on her personal Snapchat gesturing with her middle finger and a caption that read “f— school f— softball f— cheer f— everything.” A fellow student took a screenshot and shared it with the cheerleading coach, who suspended her from the team for the rest of the year. Now, Levy and her use of the F-bomb on Snapchat are at the center of a Supreme Court case that could reshape the status of student speech, writes Priyam Madhukar. // Read More

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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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This event is produced in partnership with The WNET Group, parent to America’s flagship PBS station.

Want to keep up with Brennan Center events? Subscribe to the events newsletter.

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News

Madiba Dennie on the census numbers // NPR

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Michael German on the FBI’s response to the January 6 insurrection // Reuters

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Michael Li on how the For the People Act could stop partisan gerrymandering // Guardian

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Yurij Rudensky on the upcoming redistricting cycle // Missouri Times

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Thomas Wolf on the census apportionment data // KPFA

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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.

Brennan Center for Justice at NYU School of Law

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