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

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The Briefing

Even as impeachment proceedings continue to unfold, President Trump faces perhaps more significant challenges with more consequences to his presidency than any modern occupant of the Oval Office has confronted at one time, according to Peter Baker, chief White House correspondent for the New York Times. “The sheer volume of legal issues that have made it to court … has been head-spinning,” writes ([link removed]) Baker.

The outcomes of these legal battles will have implications long after the Trump leaves office. There will be a lot of new constitutional law made during this presidency. There will be new rulings on the emoluments clause, on subpoenas from state and local prosecutors, and so on. Law professors will dine out on this for a generation.

Democracy

A Framework for Election Vendor Oversight

More than 80 percent of the voting systems used in the United States are under the purview of three vendors — and a successful cyberattack against any of these three companies could have devastating consequences for elections, according to a report released today by the Brennan Center. Private companies also supply and service other systems essential for free and fair elections, such as voter registration databases and electronic pollbooks. But these vendors receive little or no federal review, which leaves elections vulnerable to attack. The Brennan Center report proposes a new framework for oversight of the nation’s election infrastructure and pushes for stronger standards for election vendors. // READ MORE ([link removed])

Federal Appeals Court Considering Lawsuit Seeking More Secure Voting Machines

The Brennan Center and Troutman Sanders LLP filed a friend-of-the-court brief last week in a federal lawsuit that aims to get rid of paperless voting machines Tennessee. The lawsuit, brought by local voters, argues that the machines undermine election integrity because they cannot be reliably audited. The brief was filed on behalf of 13 current and former election officials in 10 states. It explains that when the paperless machines are used, there is a substantial risk for votes to be counted improperly, and an effective audit or recount are impossible. // READ MORE ([link removed])

Virginia Democrats Must Follow Through on Redistricting Reform

Last week Democrats won control of both houses of the Virginia General Assembly for the first time in a generation. They also control the governor’s mansion. Already there has been early buzz about how they might use their new trifecta to enact reforms such as automatic voter registration. But paradoxically, the election has also created a potential opportunity for Democrats to be unprincipled on redistricting reform. Will Democrats, with the unexpected chance to draw maps in 2021 without GOP involvement, remain as committed to redistricting reform as they were when government control was divided? // READ MORE ([link removed])

Constitution

Law Enforcement Social Media Monitoring Is Invasive and Opaque

Law enforcement officers and federal agencies increasingly monitor social media both in criminal investigations and for general surveillance, raising concerns about abuse and overreach. Additionally, such monitoring tends to disproportionately affect historically overpoliced communities, especially communities of color. Social media monitoring can also lead to police presence and surveillance at protests and other First Amendment–protected activities. The Brennan Center and other groups released last week a joint statement that spells out the civil rights and civil liberties implications of law enforcement monitoring of social media. // READ MORE ([link removed])

Is the Handgun America’s “Most Popular” Self-Defense Weapon?

In the 2008 case District of Columbia v. Heller, the Supreme Court struck down two Washington, DC, laws governing handguns in the home. Justice Antonin Scalia asserted that handguns should receive maximal protection because they are “the most popular weapon chosen by Americans for self-defense in the home.” However, Brennan Center Fellow Eric Ruben argues that Heller relied on an unsupported assumption about handgun popularity — an issue that could reemerge next month when the Supreme Court hears arguments in its first major Second Amendment case in a decade. // READ MORE ([link removed])

News

- Elizabeth Goitein on the risks faced by whistleblowers in the intelligence community // VOX ([link removed])

- Rachel Levinson-Waldman on the problems with social media monitoring by schools // MINNPOST ([link removed])

- Faiza Patel on new efforts by the FBI and federal prosecutors to combat domestic terrorism by white nationalist groups // NEW YORK TIMES ([link removed])

- Faiza Patel on the role of Internet freedom and privacy in maintaining free societies // WASHINGTON POST ([link removed])

- Myrna Pérez on recently passed voting laws that will make it harder for citizens to vote // MATTER OF FACT ([link removed])

- Michael Waldman on impeachment proceedings and presidential history // ESTUDIO DC ([link removed])

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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