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Analysis

What Every American Should Ask of the Next President

Ten solutions from the Brennan Center for Justice that would make our elections fairer and freer, transform our criminal justice system to end mass incarceration, and make our institutions of governance more responsive to the people.

  • Brennan Center for Justice
July 30, 2019

The 2016 elections revealed deepening threats to American values and government — brazen voter suppression, dark money, gerrymandering, and threats to election security and the norms of democracy.

But the electorate has responded, urging reform of voting systems and making democracy and criminal justice top priorities. In 2018, voters surged to the polls — the highest midterm turnout since 1914. Candidates rejected corporate PAC money and pledged to make reform a priority. Citizens passed landmark ballot initiatives to curtail partisan gerrymandering, enact automatic voter registration, and restore voting rights to those with past felony convictions. Early in 2019, the House of Representatives answered the call, passing the For the People Act (H.R. 1), a transformative bill that could reenergize our democracy for the next generation.

The results are in: the best response to an attack on democracy is to strengthen that democracy. As the 2020 elections approach, politicians on the left, right, and center understand that they can’t ignore the health of American democratic institutions.

Any presidential candidate who wants to offer grand plans for improvements must start by explaining how these changes could happen — how we can reform and revitalize our system so that the voice of the public can fully be heard. Otherwise, policy agendas will recede into irrelevance.

Here are 10 solutions from the Brennan Center for Justice that would make our elections more fairer and freer, transform our criminal justice system to end mass incarceration and move away from systemic racism, end religious bigotry as a policy of the United States government, and make our institutions of governance more responsive to the people. 

1. Pass Automatic Voter Registration

One in four eligible American citizens is not registered to vote. This quiet disenfranchisement stems from an out-of-date, ramshackle voter registration system. Too many people show up at the polls only to learn they are not on the voter rolls because one in eight voter registrations is invalid or inaccurate. U.S. voter participation trails behind that of many developed democratic nations.

The next president should support legislation to enact automatic voter registration (AVR), such as H.R. 1. This bold reform would modernize the system and ensure that all eligible citizens can vote. Under this legislation, eligible citizens would be automatically registered when they provide information to a government agency, such as state departments of motor vehicles.

AVR could add up to 50 million eligible voters to the rolls. It would reduce costs, boost accuracy, and reduce human error caused by paper registration. As of June 2019, 16 states and the District of Columbia have approved some form of AVR.

AVR is a long overdue solution that would improve the security and accuracy of our elections, boost voter registration, and strengthen our democracy.

2. Enact Small Donor Public Financing

Wealthy donors play an outsize role in politics. The 2010 Citizens United Supreme Court decision paved the way for unlimited special-interest spending, allowing a small number of megadonors to spend hundreds of millions of dollars to back candidates. Americans overwhelmingly agree about the need to counter the influence of wealth on our political process.

The next president should support legislation to create a small donor public financing system in federal elections, a plan included in H.R. 1. New York City has had such a system for decades. Under the federal plan, small-dollar donations are matched six to one. Such programs expand participation in election funding and increase racial, gender, and economic diversity among donors.

Public financing makes candidates more responsive to their constituents. It empowers voters. It curbs corruption. And it boosts diversity in civic participation.

3. End Gerrymandering

Gerrymandering is hardly new, but it’s getting worse. Politicians can now use sophisticated tools to draw maps that lock in political advantage for their own parties for a decade. This undermines American democracy by making elections a foregone conclusion, diluting the votes of communities of color, and fueling a sense among voters that their ballots don’t really matter.

The tilt is especially severe when a single political party controls redistricting, as was the case in many states in 2011. The resulting gerrymanders froze outcomes. In the 2018 midterm elections, for example, gerrymandered states saw few seats change hands.

The answer is redistricting reform — and Congress and the next president can act. They should ban partisan gerrymandering. Under H.R. 1, all states would be required to use independent redistricting commissions to draw congressional districts. The commissions would be representative, balanced, inclusive, and transparent about how they draw lines, with streamlined court review.

Uniform rules on map drawing, including an express ban on partisan gerrymandering, should be implemented now to ensure that the maps that are drawn in 2021 are fair. The additional redistricting portions of H.R. 1, including the requirement of independent redistricting commissions, should then be phased in for the round of maps drawn in 2031.

A national standard of redistricting reform would transform politics and help cure the extreme polarization that has paralyzed Congress and legislatures across the country.

4. Fight Voter Suppression

The Voting Rights Act is widely regarded as the most effective civil rights law in American history. In 2013, the Supreme Court gutted its key provision by a five-to-four vote. In Shelby County, the court effectively eliminated Section 5, which required states and localities with a history of voting discrimination to demonstrate in advance that proposed changes would not discriminate.

Between 1998 and the court’s ruling, 86 proposed changes were blocked. Hundreds more were withdrawn.

After Shelby County, a wave of state laws made it more difficult to vote by requiring strict voter identification and limiting or closing polling hours and locations. Hardest hit were voters of color.

The next president should work with Congress to pass bills that restore the strength of the Voting Rights Act by bringing back safeguards against voter suppression, especially in states that have engaged in it before.

5. Ensure Election Security

Our democracy was attacked in 2016. Russia did far more than hack campaign emails. It entered state websites and probed voter lists, targeted private vendors, and sent spear-phishing emails to over 100 election officials. Russia will try to hack the election in 2020. Others may as well.

This compounds the crisis of the country’s voting infrastructure. In 2018, old and broken machines and outdated software led to long lines at polling locations, and some would-be voters left before casting a ballot. Forty-five states use voting equipment that is no longer manufactured, and many election officials find it hard to maintain or buy replacement parts. Old machines and software are at higher risk of malfunction, more vulnerable to cyberattacks, and less likely to have a proper paper backup.

The next president and Congress must recognize that our electoral infrastructure urgently needs an upgrade. They should invest as much as $1 billion to replace aging equipment and improve other critical election infrastructure such as databases. The federal government should also provide sustained funding to help jurisdictions pursue best practices for storage, transport, and maintenance of machines and other election infrastructure, conduct preelection testing and postelection audits, and create contingency plans in case of system failures.

Further, the intelligence community and election officials agree that voting systems should have a voter-verified paper backup. As of June 2019, 12 states still use paperless electronic machines as the main polling-place equipment in at least some counties and towns (Delaware, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, New Jersey, Pennsylvania, South Carolina, Tennessee and Texas).  

6. End Abuse of Emergency Powers

Presidents can declare a national emergency, and when they do, it inevitably risks vastly expanding executive power. Some 123 statutory powers are triggered by a presidential emergency declaration, spanning from the military to agriculture to public contracts. These laws give the executive branch authority to freeze Americans’ bank accounts and other assets, seize radio stations, avoid minimum wage requirements, and test chemical and biological weapons on unwitting citizens. Such extraordinary powers have high potential for abuse.

In February 2019, President Trump declared a national emergency in order to bypass Congress and fund construction of a wall along the U.S.-Mexico border. There are now 33 such emergencies. States of emergency tend to linger for years on end: the oldest active national emergency was issued by President Jimmy Carter in 1979 in response to the Iran hostage crisis.

The next president should work with Congress to reform the National Emergencies Act so that it includes stronger protections against abuse. These changes would define a “national emergency” and require Congress to vote on emergency declarations after a short period. States of emergency should never exceed five years, and presidents should be required to provide more information on how emergency powers are being used. And, it goes without saying, these powers should only be tapped in case of a real emergency, not just a budget negotiation gone wrong.   

When used inappropriately, these declarations can worsen or even create emergencies, violate checks and balances, trample civil liberties, and enable abuses of power. The next president should actively support legislative reforms and refrain from deploying emergency powers against the will of Congress or in the absence of a true crisis.

7. End the Muslim Ban and Extreme Vetting

Religious freedom is a core American value. Yet while campaigning, Donald Trump called for a ban on Muslims entering the United States and made a litany of anti-Muslim statements. One week after taking office, Trump signed an executive order that banned people from seven predominately Muslim countries. For countries not on the list, he announced that his administration would conduct “extreme vetting.” Versions of the ban were struck down by federal courts because they displayed religious bigotry. But the Supreme Court ultimately upheld the ban by a 5-4 decision.

This Muslim ban is a product of prejudice, not proof. It obviously discriminates against Muslims, violating the core tenet of religious freedom. As attested by many former senior national security officials from across the political spectrum, it makes us no safer. Each day that passes, the ban stigmatizes Muslims, tears apart families, disrupts livelihoods, stifles academic exchange, and damages the country’s international reputation as a place where people from across the world can seek refuge and worship freely.

New so-called extreme vetting rules accomplish the same result but have received less attention. We already have a robust vetting system — empirical evidence shows that the risk of being killed in the United States by a foreign-born terrorist is negligible. The next president should immediately withdraw the executive orders that created the Muslim ban and restore the United States’ historical commitment to diversity, family reunification, and sensible security policies. The next president should also work with Congress to pass the NO BAN Act, introduced in April 2019, which would ensure that the president could not unilaterally ban people from the United States on a whim and which would strengthen the existing bars against discrimination included in the Immigration and Nationality Act.

8. Secure Passage of the Reverse Mass Incarceration Act

The United States has less than 5 percent of the world’s population but nearly one quarter of its prisoners. It isn’t necessary to keep our communities safe. Thirty-nine percent of state and federal prisoners are behind bars with little public safety rationale. The prison population is at its lowest rate in a decade, and crime continues to fall. Yet the country still warehouses some 2.3 million people in its jails and prisons. No other industrialized nation comes close.

Mass incarceration is a defining civil rights issue. African Americans are more likely to be stopped by police, arrested, detained before trial, and given harsh sentences than white people. The imprisonment rate of Black men is six times higher than that of white men.

The criminal justice system is also expensive and ineffective. Taxpayers pay $260 billion a year for policing, jails, prisons, and courts, even though research shows that incarceration and lower crime rates are mostly unrelated. Misguided financial incentives are a part of the problem. Each year, Washington sends at least $3.8 billion to the states to support more arrests, longer prison sentences, and more prisons.  

There are signs of change: since 2006, more than half of the states have enacted policies to lower their incarceration rates while also reducing crime. But these reforms should be implemented nationwide.

The next president should encourage Congress to reduce incarceration and improve public safety by passing the Reverse Mass Incarceration Act. The 1994 crime bill sent funds to states if they expanded prisons. This new law would establish a $20 billion federal grant program to support states that reduced their prison populations. It aims to lower the nationwide imprisonment rate by 20 percent over a decade. The savings from reducing the prison population would outweigh the initial costs of the program.

9. Restore Voting Rights for Formerly Incarcerated People

Felony disenfranchisement is an ugly remnant of Jim Crow. Thirty-four states disenfranchise people convicted of felonies even after they are released from prison. These laws disproportionately affect people of color: in 2016, black citizens were four times more likely than the general population to be barred from voting.

These laws vary among states. A few permanently bar all those who have felony convictions from voting, while others outlaw voting for a period of time, for some offenses, or while on probation or parole. This patchwork confuses potential voters and election officials, deterring even eligible citizens from registering.

The next president should support the Democracy Restoration Act, passed as part of the House of Representatives’ omnibus reform bill H.R. 1. The bill would restore Americans’ right to vote in federal elections upon release from prison. This legislation would provide second chances to millions of Americans, allowing them to fully participate in our democratic process.

10. Roll Back Unnecessary Imprisonment and Long Sentences

Mass incarceration is wildly expensive — it costs more than $30,000 a year to house someone in federal prison — and often counterproductive. Research shows that longer sentences do not reduce commission of certain crimes upon release; some studies even show that imprisonment can lead people to commit more crimes. The next president should commit to passing federal proposals to reduce prison sentences.

First, imprisonment for low-level crimes, like drug possession, should be eliminated. Instead, people who commit these crimes should be sentenced to alternatives to prison, such as probation, electronic monitoring, treatment, community service, or fines calibrated to ability to pay. Nearly eight out of ten prisoners suffer from drug addiction or mental illness. Therefore, for many, medical treatment is a far better response than punitive incarceration.

Second, long prison sentences should be shortened, including sentences for nonviolent felonies, such as drug possession. At least 15 percent of U.S. prisoners are serving draconian, lengthy sentences that could be reduced with no effect on public safety.

Ultimately, if both of these guidelines were implemented nationwide, the United States could reduce its prison population by 40 percent. The next president should call on Congress to pass these reforms at the federal level and encourage states to enact similar laws.

(Photo: Getty)