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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 This quiet disen­fran­chise­ment stems from an out-of-date, ramshackle voter regis­tra­tion system.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)