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Policy Solution

Congress Must Pass the ‘For the People Act’

Summary: Bold legislation introduced in the House (H.R. 1) and Senate (S. 1) would ensure that our democracy works for everyone.

Last Updated: March 18, 2021
Published: January 29, 2021

Introduction

Amer­ican demo­cracy urgently needs repair. We now have a historic oppor­tun­ity to bring about trans­form­at­ive change. In both houses of Congress, the For the People Act — H.R. 1 in the House and S. 1 in the Senate — was desig­nated as the first bill, a top prior­ity this session.

This historic legis­la­tion responds to twin crises facing our coun­try: the ongo­ing attack on demo­cracy — reflec­ted in the assault on the Capitol on Janu­ary 6 and the subsequent flood of vote suppres­sion bills across the coun­try — and the urgent demand for racial justice. It is based on the key insight that the best way to defend demo­cracy is to strengthen demo­cracy. If enacted, it would be the most signi­fic­ant voting rights and demo­cracy reform in more than half a century.

The 2020 elec­tion, like the 2018 midterms, featured historic levels of voter turnout — the highest in over a century, even in the face of a deadly pandemic. But there were also unpre­ced­en­ted efforts to thwart the elect­oral process and disen­fran­chise voters, primar­ily in Black and brown communit­ies, based on lies about “voter fraud.” Those efforts continue through restrict­ive voting bills in states across the coun­try. Extreme partisan gerry­man­der­ing contin­ued to distort far too many races for the House — a plot that is poised to be repeated in the upcom­ing redis­trict­ing cycle unless Congress steps in to prevent it. And despite increased engage­ment by small campaign donors last year, the most expens­ive campaigns in Amer­ican history were still largely bank­rolled by a small coterie of indi­vidual megadonors and entrenched interests, many of whom were able to keep their iden­tit­ies secret from voters.

These prob­lems were more extreme this cycle, but they are certainly not new. For decades, citizens’ voices have been silenced through voter suppres­sion, gerry­man­der­ing, and decept­ive tactics. Wealthy campaign donors main­tain outsized sway over policy. And the guard­rails against discrim­in­a­tion, corrup­tion, and manip­u­la­tion of the system for personal gain have all been cast aside or eroded. The viru­lent coronavirus, whose worst effects in terms of both health and the economy have fallen dispro­por­tion­ately on communit­ies of color, under­scores the urgent need for a func­tion­ing demo­cracy that serves all the people.

The current assault on voting rights across the coun­try under­scores the urgency of reform. Even though our demo­cratic insti­tu­tions survived an attempt to over­turn the result of the 2020 elec­tion, unscru­pu­lous state legis­lat­ors have seized on the disin­form­a­tion that fueled this attempt to intro­duce an alarm­ing number of regress­ive bills aimed at restrict­ing access to the ballot, includ­ing by sharply restrict­ing access to mail ballots, cutting back on early voting, and slash­ing voter regis­tra­tion oppor­tun­it­ies. To date, more than 360 bills to restrict voting access have been proposed in 47 states. These meas­ures target and will dispro­por­tion­ately harm voters of color, young voters, and voters with disab­il­it­ies. In Geor­gia, for instance, a recent Bren­nan Center analysis found that proposed bills to cut Sunday early voting and mail-voting access would burden Black voters most. foot­note1_78hw2o5 1 Bren­nan Center for Justice, Voting Laws Roundup: March 2021, April 1, 2021, https://www.bren­nan­cen­ter.org/our-work/research-reports/voting-laws-roundup-march-2021; Bren­nan Center for Justice, “State Voting Bills Tracker 2021,” Febru­ary 24, 2021, https://www.bren­nan­cen­ter.org/our-work/research-reports/voting-laws-roundup-febru­ary-2021; and Kevin Morris, “Geor­gi­a’s Proposed Voting Restric­tions Will Harm Black Voters Most,” Bren­nan Center for Justice, March 6, 2021, https://www.bren­nan­cen­ter.org/our-work/research-reports/geor­gias-proposed-voting-restric­tions-will-harm-black-voters-most. For more inform­a­tion on how the For the People Act would coun­ter­act this recent wave of vote suppress­ive bills, see Gareth Fowler, Wendy Weiser, Will Wilder, Izabela Trin­gali, and Stuart Baum, “Congress Could Change Everything,” Bren­nan Center for Justice, March 16, 2021, https://www.bren­nan­cen­ter.org/our-work/research-reports/congress-could-change-everything.

But here is the good news: we know what we need to do to address these prob­lems and strengthen Amer­ican demo­cracy. It starts with passing the For the People Act. The Act incor­por­ates key meas­ures that are urgently needed, includ­ing auto­matic voter regis­tra­tion and other steps to modern­ize our elec­tions; a national guar­an­tee of free and fair elec­tions without voter suppres­sion, coupled with a commit­ment to restore the full protec­tions of the Voting Rights Act; small donor public finan­cing to empower ordin­ary Amer­ic­ans instead of big donors (at no cost to taxpay­ers) and other crit­ical campaign finance reforms; an end to partisan gerry­man­der­ing; and a much-needed over­haul of federal ethics rules. Crit­ic­ally, the Act would thwart virtu­ally every vote suppres­sion bill currently pending in the states.

These reforms respond directly to Amer­ic­ans’ desire for real solu­tions that ensure that each of us can have a voice in the decisions that govern our lives, as evid­enced by their passage in many states, often by lopsided bipar­tisan margins. They are espe­cially crit­ical for communit­ies of color. Racial justice cannot be fully achieved without a system in which all Amer­ic­ans have the means to advoc­ate for them­selves and exer­cise polit­ical power.

As Pres­id­ent Biden remarked in his inaug­ural address: demo­cracy is precious, but demo­cracy is also fragile. The 2020 elec­tion revealed a passion­ate commit­ment to demo­cracy on the part of tens of millions of Amer­ic­ans who braved a deadly pandemic, voter suppres­sion, and a concer­ted campaign of pres­id­en­tial lies to make their voices heard. On March 3, the House of Repres­ent­at­ives honored that commit­ment by passing the Act in its entirety. Now, the Senate and the pres­id­ent must also fulfill their prom­ise to secure repres­ent­at­ive demo­cracy in Amer­ica now and for future gener­a­tions.

End Notes

Voting Rights

The right to vote is at the heart of effect­ive self-govern­ment. In the Feder­al­ist Papers, Alex­an­der Hamilton and James Madison laid down a stand­ard for our demo­cracy: “Who are to be the elect­ors of the federal repres­ent­at­ives? Not the rich, more than the poor; not the learned, more than the ignor­ant; not the haughty heirs of distin­guished names, more than the humble sons of obscur­ity and unpro­pi­tious fortune. The elect­ors are to be the great body of the people of the United States.” foot­note1_33jcy70 1 “The Feder­al­ist Papers No. 57,” Avalon Project, accessed Febru­ary 11, 2019, http://avalon.law.yale.edu/18th_century/fed57.asp. For over two centur­ies, we have worked to live up to that ideal, but have consist­ently fallen short. Many have struggled, and continue to struggle, for the fran­chise. The For the People Act would expand and protect this most funda­mental right and bring voting into the 21st century.


Modern­ize Voter Regis­tra­tion

One in five eligible Amer­ic­ans is not registered to vote, due in many cases to out-of-date and ramshackle voter regis­tra­tion systems. foot­note2_lgi1h3w 2 The Pew Char­it­able Trusts, Why Are Millions of Citizens Not Registered to Vote?, June 2017, 1, https://www.pewtrusts.org/-/media/assets/2017/06/ei_why_are_millions_of_citizens_not_registered_to_vote.pdf. We must modern­ize these systems.

The United States is the only major demo­cracy in the world that requires indi­vidual citizens to shoulder the onus of regis­ter­ing to vote (and reregis­ter­ing when they move). foot­note3_dz5n7wa 3 Jennifer S. Rosen­berg, Expand­ing Demo­cracy: Voter Regis­tra­tion Around the World, Bren­nan Center for Justice, 2009, 2–3, https://www.bren­nan­cen­ter.org/public­a­tion/expand­ing-demo­cracy-voter-regis­tra­tion-around-world. In much of the coun­try, voter regis­tra­tion still relies on error-prone pen and paper. Paper forms make mistakes and omis­sions more likely, and they increase the risk of inac­cur­ate entry of inform­a­tion into data­bases by elec­tion offi­cials. A 2012 report by the Pew Center on the States estim­ated that roughly one in eight regis­tra­tions in Amer­ica is invalid or signi­fic­antly inac­cur­ate. foot­note4_m1ug­m4n 4 Pew Center on the States, Inac­cur­ate, Costly and Inef­fi­cient: Evid­ence that Amer­ica’s Voter Regis­tra­tion System Needs an Upgrade, 2012, 1, https://www.pewtrusts.org/en/research-and-analysis/reports/2012/02/14/inac­cur­ate-costly-and-inef­fi­cient-evid­ence-that-amer­icas-voter-regis­tra­tion-system-needs-an-upgrade.

These prob­lems decrease turnout. Each Elec­tion Day, millions of Amer­ic­ans go to the polls only to have trouble voting because of regis­tra­tion flaws. Some find their names wrongly deleted from the rolls. Others fall out of the system when they move. foot­note5_0k8e5ud 5 Accord­ing to a 2001 commis­sion chaired by former Pres­id­ents Ford and Carter, “The regis­tra­tion laws in the United States are among the most demand­ing in the demo­cratic world . . . [and are] one reason why voter turnout in the United States is near the bottom of the developed world.” See National Commis­sion on Elec­tion Reform, Reports of the Task Force on the Federal Elec­tion System, 2001, 1–3. See also R. Michael Alvarez, Stephen Ansol­abehere, et al., 2008 Survey of the Perform­ance of Amer­ican Elec­tions: Final Report, 2009, 59, https://elec­tions.delaware.gov/pdfs/SPAE_2008.pdf; Charles Stew­art III, 2012 Survey of the Perform­ance of Amer­ican Elec­tions: Final Report, Harvard Data­verse, 2013, ii, http://dvn.iq.harvard.edu/dvn/dv/meas­uringelec­tions; Charles Stew­art III, 2016 Survey of the Perform­ance of Amer­ican Elec­tions: Final Report, Harvard Data­verse, 2017, 21, https://data­verse.harvard.edu/file.xhtml?persist­en­tId=doi:10.7910/DVN/Y38VIQ/2NJDL9&version=1.0; U.S. Elec­tion Assist­ance Commis­sion, 2012 Elec­tion Admin­is­tra­tion and Voting Survey, 2013, 8–10, https://www.eac.gov/assets/1/6/2012Elec­tion­Ad­min­is­tra­tion­and­Voter­Sur­vey.pdf; and Thomas Patter­son, The Vanish­ing Voter: Public Involve­ment in an Age of Uncer­tainty (New York: Vintage Books, 2002), 178.

Outdated regis­tra­tion systems also under­mine elec­tion integ­rity. Incom­plete and error-laden voter lists create oppor­tun­it­ies for malefact­ors to disen­fran­chise eligible citizens. Offi­cials with partisan motives can remove voters from the rolls because of minor discrep­an­cies, such as spelling mistakes, incom­plete addresses, or other miss­ing inform­a­tion. These systems are also far more expens­ive to main­tain than more modern systems. In Arizon­a’s Mari­copa County, for example, processing a paper regis­tra­tion costs $0.83, compared to $0.03 for applic­a­tions processed elec­tron­ic­ally. foot­note6_z1p6k9a 6 Chris­topher Ponoroff, Voter Regis­tra­tion in a Digital Age, Bren­nan Center for Justice, 2010, 12, https://www.bren­nan­cen­ter.org/public­a­tion/voter-regis­tra­tion-digital-age.

The Covid-19 pandemic put outdated regis­tra­tion systems under even greater stress. Quar­ant­ines, illnesses, and social distan­cing reduced access to govern­ment offices, voter regis­tra­tion drives were curbed, and the post office was disrup­ted in the lead up to the elec­tion. The result was a dramatic reduc­tion in voter regis­tra­tion rates in many state. foot­note7_7r2e­ht3 7 Peter Miller, Voter Regis­tra­tion Has Plummeted in 2020, Bren­nan Center for Justice, Septem­ber 21, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/voter-regis­tra­tion-has-plummeted-2020.

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Auto­matic Voter Regis­tra­tion

Auto­matic voter regis­tra­tion, a key compon­ent of the For the People Act, would trans­form and modern­ize our current regis­tra­tion systems. This bold, paradigm-shift­ing approach would add tens of millions of voters to the rolls, cost less, and bolster secur­ity and accur­acy. It is now the law in nine­teen states and the District of Columbia. foot­note8_sqxlmu2 8 Sixteen states and Wash­ing­ton, DC enacted AVR legis­lat­ively or via ballot initi­at­ive; three states (Color­ado, Connecti­cut, and Geor­gia) adop­ted it admin­is­trat­ively. See Bren­nan Center for Justice, “History of AVR & Imple­ment­a­tion Dates,” last updated Janu­ary 17, 2020, https://www.bren­nan­cen­ter.org/analysis/history-avr-imple­ment­a­tion-dates. It should be the law for the entire coun­try.

Under auto­matic voter regis­tra­tion (AVR), every eligible citizen who inter­acts with desig­nated govern­ment agen­cies, such as the Depart­ment of Motor Vehicles (“DMV”), a public univer­sity, or a social service agency, is auto­mat­ic­ally registered to vote, unless they decline regis­tra­tion. It shifts regis­tra­tion from an “opt-in” to an “opt-out” process, align­ing with people’s natural propensity to choose the default option presen­ted to them. If fully adop­ted nation­wide, AVR could add as many as 50 million new eligible voters to the rolls – the largest enfran­chise­ment since the 19th Amend­ment was rati­fied. foot­note9_8txjs5h 9 Bren­nan Center for Justice, The Case for Auto­matic Voter Regis­tra­tion, 2016, 6–7, https://www.bren­nan­cen­ter.org/sites/default/files/public­a­tions/Case_for_Auto­matic_Voter_Regis­tra­tion.pdf.

The policy also requires that voter regis­tra­tion inform­a­tion be elec­tron­ic­ally trans­ferred to elec­tion offi­cials as opposed to an anti­quated infra­struc­ture of paper forms and snail mail. This signi­fic­antly increases the accur­acy of the rolls and reduces the costs of main­tain­ing them. foot­note10_aidi­odl 10 Bren­nan Center, The Case for Auto­matic Voter Regis­tra­tion, 11.

Cali­for­nia and Oregon became the first states to adopt AVR in 2015. Since then, 17 more states and the District of Columbia followed—­many with strong bipar­tisan support. In Illinois, for example, the state legis­lature passed AVR unan­im­ously, and a Repub­lican governor signed it into law. foot­note11_wkaeq58 11 Bren­nan Center, “History of AVR & Imple­ment­a­tion Dates"; Bren­nan Center for Justice, Auto­matic Voter Regis­tra­tion, last updated Novem­ber 7, 2018, https://www.bren­nan­cen­ter.org/analysis/auto­matic-voter-regis­tra­tion.

The new system has proven extraordin­ar­ily success­ful, increas­ing regis­tra­tion rates in nearly every state where it has been imple­men­ted. In Vermont, for example, regis­tra­tions went up by 60 percent after it adop­ted AVR. In Geor­gia, they increased 94 percent. In eight juris­dic­tions that imple­men­ted AVR for the 2018 elec­tion, 2.2 million people were registered to vote through AVR, and up to 6 million people had their regis­tra­tion inform­a­tion updated. foot­note12_d84i831 12 Kevin Morris and Peter Dunphy, AVR Impact on State Voter Regis­tra­tion, 2019, https://www.bren­nan­cen­ter.org/sites/default/files/public­a­tions/2019_04_AVR_Report_Final_0.pdf; Nath­aniel Rakich, “What Happened When 2.2 Million People Were Auto­mat­ic­ally Registered To Vote,” FiveThirtyEight, Octo­ber 10, 2018, https://fivethirtyeight.com/features/what-happened-when-2–2-million-people-were-auto­mat­ic­ally-registered-to-vote/.

There is strong reason to believe that this reform also boosts turnout. When voters are auto­mat­ic­ally registered, they are relieved of an obstacle to voting, thus increas­ing the like­li­hood they will show up to the polls. Auto­matic regis­tra­tion also exposes more voters to direct outreach from elec­tion offi­cials and others. foot­note13_bc72pqf 13 Wendy Weiser, “Auto­matic Voter Regis­tra­tion Boosts Polit­ical Parti­cip­a­tion,” Stan­ford Social Innov­a­tion Review, Janu­ary 28, 2016, https://ssir.org/articles/entry/auto­matic_voter_regis­tra­tion_boosts_polit­ical_parti­cip­a­tion#; Donald Green et al., “Field Exper­i­ments and the Study of Voter Turnout,” Journal of Elec­tions Public Opin­ion and Parties 23 (2013): 27–48, https://www.researchg­ate.net/public­a­tion/271937319_Field_Exper­i­ments_and_the_Study_of_Voter_Turnout. Indeed, Oregon saw the nation’s largest turnout increase after it adop­ted AVR. It had no compet­it­ive statewide races, yet the state’s turnout increased by 4 percent in 2016 — 2.5 percent­age points higher than the national aver­age. foot­note14_c7xuz68 14 [14] Rob Griffin et al., Who Votes with Auto­matic Voter Regis­tra­tion?, Center for Amer­ican Progress, 2017, https://www.amer­ic­an­pro­gress.org/issues/demo­cracy/reports/2017/06/07/433677/votes-auto­matic-voter-regis­tra­tion/; United States Elec­tions Project, “2016 Novem­ber General Elec­tion Turnout Rates,” last accessed April 23, 2018, http://www.elect­pro­ject.org/2016g; United States Elec­tion Project, “2012 Novem­ber General Elec­tion Turnout Rates,” last modi­fied Septem­ber 3, 2014, http://www.elect­pro­ject.org/2012g. In the eight juris­dic­tions analyzed, AVR resul­ted in hundreds of thou­sands of new voters at the polls. Other reforms that make it easier to register have also increased turnout, such as permit­ting regis­trants who move anywhere within a state to trans­fer their regis­tra­tion and vote on elec­tion day at their new polling place. foot­note15_r76n­jxk 15 For example, one study found that simply making regis­tra­tion port­able can boost turnout by more than 2 percent. Michael McDon­ald, “Port­able Voter Regis­tra­tion,” Polit­ical Beha­vior 30 (2008): 491–501, https://www.jstor.org/stable/40213330?seq=1#page_scan_tab_contents. These meas­ures send a strong message that all eligible citizens are welcome and encour­aged to parti­cip­ate in our demo­cracy.

Many elec­tion offi­cials support AVR because it improves admin­is­tra­tion and saves money. Virtu­ally every state that has imple­men­ted elec­tronic trans­fer of regis­tra­tion records from agen­cies such as the DMV to elec­tion offi­cials has repor­ted substan­tial savings due to reduced staff hours processing paper, and lower print­ing and mail­ing expenses. Elim­in­at­ing paper forms improves accur­acy, reduces voter complaints about regis­tra­tion prob­lems, and reduces the need for the use of provi­sional ballots. foot­note16_i5x3sf3 16 Bren­nan Center, The Case for Auto­matic Voter Regis­tra­tion, 10–11.

Voters strongly support AVR. Accord­ing to recent polling, 65 percent of Amer­ic­ans favor it. Michigan and Nevada adop­ted AVR this past elec­tion by popu­lar refer­en­dum, with over­whelm­ing support from voters across the polit­ical spec­trum. Alaska voters passed AVR in 2016 with nearly 64 percent of the vote. foot­note17_5nouezd 17 Pew Research Center, “Elec­tions in Amer­ica: Concerns Over Secur­ity, Divi­sions Over Expand­ing Access to Voting,” last modi­fied Octo­ber 29, 2018, http://www.people-press.org/2018/10/29/elec­tions-in-amer­ica-concerns-over-secur­ity-divi­sions-over-expand­ing-access-to-voting/; New York Times, “Michigan Elec­tion Results,” last modi­fied Janu­ary 28, 2019, https://www.nytimes.com/inter­act­ive/2018/11/06/us/elec­tions/results-michigan-elec­tions.html; New York Times “Nevada Elec­tion Results,” last modi­fied Janu­ary  29, 2019, https://www.nytimes.com/inter­act­ive/2018/11/06/us/elec­tions/results-nevada-elec­tions.html; New York Times “Alaska Ballot Meas­ure 1—Al­low Qual­i­fied Indi­vidu­als to Register to Vote When Apply­ing for a Perman­ent Fund Dividend—Res­ults: Approved,” last modi­fied August 1, 2017, https://www.nytimes.com/elec­tions/2016/results/alaska-ballot-meas­ure-1-pfd-applic­a­tion-voter-reg.

The For the People Act sens­ibly makes AVR a national stand­ard, build­ing on past federal reforms to the voter regis­tra­tion system. foot­note18_9iqj3gz 18 The National Voter Regis­tra­tion Act of 1993 required states to offer voter regis­tra­tion at their motor vehicle, public assist­ance, and disab­il­it­ies agen­cies, among other things. 52. U.S.C. §§ 20504–20506. H.R. 1’s AVR provi­sions build on this by expand­ing the agen­cies that offer voter regis­tra­tion and by making the regis­tra­tion process paper­less at those agen­cies. The Help Amer­ica Vote Act of 2002 pushed states into the digital age, by requir­ing them to create a cent­ral­ized, compu­ter­ized voter regis­tra­tion list. 52 U.S.C. § 21083. H.R. 1 extends the bene­fits of that legis­la­tion by seam­lessly trans­mit­ting voter inform­a­tion between regis­tra­tion agen­cies and the elec­tion offi­cials that control the compu­ter­ized voter list. Crit­ic­ally, the Act requires states to put AVR in place at a wide vari­ety of govern­ment agen­cies beyond the DMV, includ­ing those that admin­is­ter Social Secur­ity or provide social services, as well as higher educa­tion insti­tu­tions. It requires a one-time “look back” at agency records to register eligible indi­vidu­als who have previ­ously inter­ac­ted with govern­ment agen­cies. It protects voters’ sens­it­ive inform­a­tion from public disclos­ure.

Crit­ic­ally, AVR also includes multiple safe­guards to ensure that ineligible voters are not registered and to prevent people from being punished for inno­cent mistakes. The govern­ment agen­cies desig­nated for AVR regu­larly collect inform­a­tion about indi­vidu­als’ citizen­ship status and age, and they are already required to obtain an affirm­a­tion of U.S. citizen­ship during the regis­tra­tion trans­ac­tion. Before anyone is registered, agen­cies must inform indi­vidu­als of eligib­il­ity, the penal­ties for illegal regis­tra­tion, and offer an oppor­tun­ity to opt out of regis­tra­tions. Elec­tion offi­cials, too, are required to send indi­vidu­als a follow-up notice by mail. Indeed, elec­tion offi­cials report that AVR enhances the accur­acy of the rolls. foot­note19_mumcfgk 19 Bren­nan Center, The Case for Auto­matic Voter Regis­tra­tion, 10–11.

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Same-Day and Online Regis­tra­tion

The For the People Act would boost voter parti­cip­a­tion further by estab­lish­ing same-day and online regis­tra­tion. This would elim­in­ate cumber­some paper­work and wait­ing peri­ods. With a few clicks or a trip to the polls with proper docu­ment­a­tion, eligible voters would be able to cast a ballot.

Same-day regis­tra­tion (SDR) comple­ments AVR, allow­ing eligible citizens to register and vote on the same day. It is partic­u­larly useful to people who have not inter­ac­ted with govern­ment agen­cies or whose inform­a­tion has changed since they last did so. And because it allows eligible Amer­ic­ans to vote even if their names are not on the voter rolls, SDR safe­guards against improper purges, regis­tra­tion system errors, and cyber­se­cur­ity attacks.

SDR has been used success­fully in several states since the 1970s. Today, 21 states and the District of Columbia have passed some form of same day regis­tra­tion, either on elec­tion day, during early voting, or both. foot­note20_unisbwu 20 National Confer­ence of State Legis­latures, “Same Day Voter Regis­tra­tion,” last modi­fied Janu­ary 25, 2019, http://www.ncsl.org/research/elec­tions-and-campaigns/same-day-regis­tra­tion.aspx. SDR has been shown to boost voter turnout by 5 to 7 percent. foot­note21_wt1l5z9 21 Michael McDon­ald, “Port­able Voter Regis­tra­tion,” Polit­ical Beha­vior 30 (2008): 499, 495–96, https://www.jstor.org/stable/40213330?seq=1#page_scan_tab_contents; In the 2016 elec­tion, voter turnout was, on aver­age, 7 percent higher in states with SDR than in those without. See George Pills­bury and Julian Johan­nesen, Amer­ica Goes to the Polls 2016: A Report on Voter Turnout in the 2016 Elec­tion, Nonprofit Vote, 2016, https://www.nonprofit­vote.org/docu­ments/2017/03/amer­ica-goes-polls-2016.pdf/. More than 60 percent of Amer­ic­ans support it. foot­note22_j6eh01q 22 Pew Research Center, “Elec­tions in Amer­ica”; “PRRI/The Atlantic 2018 Voter Engage­ment Survey,” The Atlantic, July 17, 2018, https://www.prri.org/wp-content/uploads/2018/07/PRRI-The-Atlantic-2018-Voter-Engage­ment-Survey-Topline.pdf?utm_source=Demo­cracy+­Col­lab­or­at­ive+at+Re­Think+­Me­dia&utm_campaign=774f203b91-EMAIL_CAMPAIGN_2019_02_01_09_27&utm_medium=email&utm_term=0_3e305aa083–774f203b91–391816881.

The For the People Act also requires states to offer secure and access­ible online regis­tra­tion. At a time when many Amer­ic­ans do everything from bank­ing to review­ing medical records online, voters want this conveni­ent method of regis­tra­tion. The online regis­tra­tion provi­sions in the For the People Act would let all voters register, update regis­tra­tion inform­a­tion, and check regis­tra­tions online. This option has been espe­cially crit­ical during the Covid-19 pandemic, when voters were preven­ted from regis­ter­ing by other means. The act would also ensure that these bene­fits are avail­able to citizens who do not have drivers licenses. Online regis­tra­tion is espe­cially crit­ical as a response to the Covid-19 pandemic, which may keep some voters from regis­ter­ing by other means.

In addi­tion to conveni­ence and safety, online regis­tra­tion saves money and improves voter roll accur­acy. Processing elec­tronic applic­a­tions is a frac­tion of the cost of processing paper applic­a­tions, and elec­tion offi­cials report that letting voters enter their own inform­a­tion signi­fic­antly reduces the like­li­hood of incom­plete applic­a­tions and mistakes. It is not surpris­ing, there­fore, that online regis­tra­tion is incred­ibly popu­lar and has spread rapidly. In 2010, only six states offered online voter regis­tra­tion. Now, 39 states and the District of Columbia do. foot­note23_kbrt2ms 23 Holly Maluk et al., Voter Regis­tra­tion in a Digital Age: 2015 Update, Bren­nan Center for Justice, 2015, 8, https://www.bren­nan­cen­ter.org/sites/default/files/2019–08/Report_Voter_Regis­tra­tion_Digital_Age_2015.pdf; Bren­nan Center for Justice, “VRM in the States: Online Regis­tra­tion,” last modi­fied Janu­ary 22, 2020, https://www.bren­nan­cen­ter.org/analysis/vrm-states-online-regis­tra­tion.

Taken together, AVR, SDR, and online regis­tra­tion would ensure that no eligible voter is left out of our demo­cratic process. It is time to bring these reforms to the whole coun­try.

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Protect Against Flawed Purges

Modern­iz­ing our voter regis­tra­tion system means not only regis­ter­ing all eligible voters, but also making sure those eligible voters stay on the voter rolls. Voter purges — the large-scale dele­tion of voters’ names from the rolls often using flawed data — are on the rise. In 2018, they were a key form of vote suppres­sion used by elec­tion offi­cials around the coun­try. foot­note24_hrafoxh 24 Myrna Pérez, “How the Midterm Elec­tions May Be Comprom­ised,” New York Times, July 19, 2018, https://www.nytimes.com/2018/07/19/opin­ion/midterms-voting-purges-elec­tions-regis­tra­tion.html; see also Kevin Morris and Myrna Pérez, “Flor­ida, Geor­gia, North Caro­lina Still Purging Voters at High Rates,” Bren­nan Center for Justice, last modi­fied Octo­ber 1, 2018, https://www.bren­nan­cen­ter.org/blog/flor­ida-geor­gia-north-caro­lina-still-purging-voters-high-rates. We should address this grow­ing threat by curb­ing improper efforts to remove eligible voters.

Purge activ­ity has increased at a substan­tially greater rate in states that were subject to federal over­sight under the Voting Rights Act of 1965 (VRA) prior to the Supreme Court’s decision in Shelby County v. Holder. The Bren­nan Center has calcu­lated that more than 17 million voters were purged from the polls nation­wide between 2016 and 2018. Over the same period, the median purge rate in juris­dic­tions previ­ously covered by the VRA was 40 percent higher than the purge rate in juris­dic­tions that were not covered. Geor­gia, for example, purged twice as many voters— 1.5 million— between the 2012 and 2016 elec­tions as it did between 2008 and 2012. The state also saw most of its counties purge more than 10 percent of their voters within the past two years alone. Texas purged 363,000 more voters between 2012 and 2014 than it did between 2008 and 2010. We ulti­mately found that 2 million fewer voters would have been purged between 2012 and 2016, and 1.1 million fewer between 2016 and 2018, if juris­dic­tions previ­ously subject to preclear­ance had purged at the same rate as other juris­dic­tions. foot­note25_oidhjup 25 Jonathan Brater, et al., Purges: A Grow­ing Threat to the Right to Vote, Bren­nan Center for Justice, July 20, 2018, 1–5, https://www.bren­nan­cen­ter.org/our-work/research-reports/purges-grow­ing-threat-right-vote; Kevin Morris, “How Purges Threaten to Disen­fran­chise Voters Under the Radar,” Bren­nan Center for Justice, last modi­fied July 20, 2018, https://www.bren­nan­cen­ter.org/blog/how-purges-threaten-disen­fran­chise-voters-under-radar.

Incor­rect purges disen­fran­chise legit­im­ate voters and cause confu­sion and delay at the polls. And purge prac­tices can be applied in a discrim­in­at­ory manner that dispro­por­tion­ately affects minor­ity voters. In partic­u­lar, match­ing voter lists with other govern­ment data­bases to ferret out ineligible voters can gener­ate racially discrim­in­at­ory results if the match­ing is done without adequate safe­guards. Black, Asian Amer­ican, and Latino voters are much more likely than white voters to have one of the most common 100 last names in the United States, result­ing in a higher rate of false posit­ives. foot­note26_dlhiyky 26 Brater et al., Purges, 7.

The For the People Act creates strong protec­tions against improper purges. It puts new guard­rails on the use of inter­state data­bases (such as the now-defunct and much-maligned Crosscheck system) that purport to identify voters that have reregistered in a new state, but that have been proven to produce deeply flawed data. foot­note27_83mjkl5 27 Brater et al., Purges, 6–8. It prohib­its elec­tion offi­cials from rely­ing on a citizen’s fail­ure to vote in an elec­tion as reason to remove them from the rolls. And it requires elec­tion offi­cials to provide timely notice to removed voters, as well as an oppor­tun­ity to remedy their regis­tra­tion before an elec­tion.

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Restore the Voting Rights Act

The For the People Act contains an express commit­ment to restore the full protec­tions of the Voting Rights Act, which the U.S. Supreme Court crippled with its ruling in Shelby County v. Holder in 2013. foot­note28_iacyoms 28 Shelby County v. Holder, 570 U.S. 529 (2013). VRA restor­a­tion is accom­plished through separ­ate legis­la­tion, the Voting Rights Advance­ment Act of 2019, or H.R. 4, which passed the House of Repres­ent­at­ives on Decem­ber 6, 2019. foot­note29_twcnka5 29 The Voting Rights Advance­ment Act of 2019, H.R. 4, 116th Cong. (2019), https://www.congress.gov/bill/116th-congress/house-bill/4.

As recent exper­i­ence makes clear, restor­a­tion of the VRA—the engine of voting equal­ity in our coun­try—is crit­ical. The VRA is widely regarded as the single most effect­ive piece of civil rights legis­la­tion in our nation’s history. foot­note30_p44tiam 30 See U.S. Depart­ment of Justice, “The Effect of the Voting Rights Act,” last updated June 19, 2009, https://www.justice.gov/crt/intro­duc­tion-federal-voting-rights-laws-0. As recently as 2006 it won reau­thor­iz­a­tion with over­whelm­ing bipar­tisan support. foot­note31_plu6egf 31 The vote was unan­im­ous in the Senate and 390–33 in the House. See U.S. Senate, “H.R.9 Vote Summary,” July 20, 2006, https://www.senate.gov/legis­lat­ive/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00212; U.S. House of Repres­ent­at­ives, “Final Vote Results for Roll Call 374,” July 13, 2006, http://clerk.house.gov/evs/2006/roll374.xml. The reau­thor­iz­a­tion was signed into law by Pres­id­ent George W. Bush. See The White House, Office of the Press Secret­ary, “Fact Sheet: Voting Rights Act Reau­thor­iz­a­tion and Amend­ments Act of 2006,” July 27, 2006, https://georgew­bush-white­house.archives.gov/news/releases/2006/07/20060727–1.html. But in the absence of a full-force VRA, the 2018 midterm elec­tions were marred by the most brazen voter suppres­sion seen in decades. foot­note32_l4h5502 32 Zachary Roth and Wendy Weiser, “This Is the Worst Voter Suppres­sion We’ve Seen in the Modern Era,” Bren­nan Center for Justice, last modi­fied Novem­ber 2, 2018, http://www.bren­nan­cen­ter.org/blog/worst-voter-suppres­sion-weve-seen-modern-era; see also Rebecca Ayala, “Voting Prob­lems 2018,” Bren­nan Center for Justice, last modi­fied Novem­ber 5, 2018, https://www.bren­nan­cen­ter.org/blog/voting-prob­lems-2018. Elec­tion offi­cials executed large-scale voter purges and closed polling places and early voting sites, espe­cially in minor­ity neigh­bor­hoods. foot­note33_hsb59rk 33 Mark Nich­ols, “Closed Voting Sites Hit Minor­ity Counties Harder for Busy Midterm Elec­tions,” USA Today, Octo­ber 30, 2018, https://www.usat­oday.com/story/news/2018/10/30/midterm-elec­tions-closed-voting-sites-impact-minor­ity-voter-turnout/1774221002/. Burden­some voter ID require­ments targeted minor­ity citizens. foot­note34_hzziewx 34 Perhaps the most strik­ing example was a North Dakota law that required voters to show IDs with a resid­en­tial street address, despite the fact that the state’s Native Amer­ican communit­ies often do not have such addresses. Although this require­ment was briefly halted by a federal district court, the Eighth Circuit Court of Appeals ulti­mately upheld the require­ment for the 2018 elec­tion. See Brake­bill v. Jaeger, 905 F.3d 553, 558 (8th Cir. 2018). See also Morris and Pérez, “Flor­ida, Geor­gia, North Caro­lina”; Brater et al., Purges, 3–5; Ayala, “Voting Prob­lems 2018.” Unne­ces­sar­ily strict regis­tra­tion rules, like Geor­gi­a’s “exact match” policy, put 53,000 voter regis­tra­tions on hold, the over­whelm­ing major­ity of whom were Black people, Latino, and Asian Amer­ican voters. foot­note35_9ko2oc0 35 Jonathan Brater and Rebecca Ayala, “What’s the Matter with Geor­gia?,” Bren­nan Center for Justice, Octo­ber 12, 2018, https://www.bren­nan­cen­ter.org/blog/whats-matter-geor­gia. And many absentee ballots were suspi­ciously rejec­ted. foot­note36_bnbr1xc 36 Chris­topher Ingra­ham, “Signa­ture Mismatches, Miss­ing Birth­days and Errant Spouses: Why Thou­sands of Absentee Ballots Were Tossed Out in Geor­gia,” Wash­ing­ton Post, Novem­ber 16, 2018, https://www.wash­ing­ton­post.com/busi­ness/2018/11/16/signa­ture-mismatches-miss­ing-birth­days-errant-spouses-why-thou­sands-absentee-ballots-were-tossed-out-geor­gia/?utm_term=.e43b354ee61b. A fully func­tional VRA would have preven­ted many of these abuses. We must commit to restor­ing the Act to ensure that all Amer­ic­ans have a voice in our demo­cracy.

For nearly five decades, the linch­pin of the VRA’s success was the Section 5 preclear­ance provi­sion. It required certain states with a history of discrim­in­at­ory voting prac­tices to obtain approval from the federal govern­ment before imple­ment­ing any voting rules changes. Section 5 deterred and preven­ted discrim­in­at­ory changes to voting rules right up until the time the Supreme Court halted its oper­a­tion. Between 1998 and 2013 alone, Section 5 blocked 86 discrim­in­at­ory changes (13 in the final eight­een months before the Shelby County ruling), caused hundreds more to be with­drawn after a Justice Depart­ment inquiry, and preven­ted still more from being advanced because poli­cy­makers knew they would not pass muster. foot­note37_ney1j3u 37 Tomas Lopez, Shelby County: One Year Later, Bren­nan Center for Justice, 2014, https://www.bren­nan­cen­ter.org/analysis/shelby-county-one-year-later.

Shelby County evis­cer­ated Section 5 by strik­ing down the “cover­age formula” that determ­ined which states were subject to preclear­ance. That resul­ted in a predict­able flood of discrim­in­at­ory voting rules, contrib­ut­ing to a now decade-long trend of states adopt­ing new restric­tions, which the Bren­nan Center has docu­mented extens­ively. Within hours of the Court’s decision, Texas announced that it would imple­ment what was then the nation’s strict­est voter iden­ti­fic­a­tion law — a law that had previ­ously been denied preclear­ance because of its discrim­in­at­ory impact. Shortly after­ward, Alabama, Arizona, Flor­ida, Missis­sippi, North Caro­lina, and Virginia also moved ahead with restrict­ive voting laws or prac­tices that previ­ously would have been subject to preclear­ance. foot­note38_safoys1 38 Lopez, Shelby County. See also Wendy Weiser and Max Feld­man, The State of Voting 2018, Bren­nan Center for Justice, 2018, <p><span style='font-size:15px;line-height:107%;font-family:"Calibri",sans-serif;'>https://www.bren­nan­cen­ter.org/our-work/research-reports/state-voting-2018</span></p>.; Bren­nan Center for Justice, “New Voting Restric­tions in Amer­ica,” accessed Janu­ary 1, 2019, https://www.bren­nan­cen­ter.org/new-voting-restric­tions-amer­ica; Bren­nan Center for Justice, “Voting Laws Roundup 2019,” last modi­fied Janu­ary 23, 2019, https://www.bren­nan­cen­ter.org/analysis/voting-laws-roundup-2019; Wendy Weiser and Lawrence Norden, Voting Law Changes in 2012, Bren­nan Center for Justice, 2011, http://www.bren­nan­cen­ter.org/public­a­tion/voting-law-changes-2012. In the years since, federal courts have repeatedly found that new laws passed after Shelby County made it harder for minor­it­ies to vote, some inten­tion­ally so. foot­note39_cwxefmc 39 Dani­elle Lang and J. Gerald Hebert, “A Post-Shelby Strategy: Expos­ing Discrim­in­at­ory Intent in Voting Rights Litig­a­tion,” Yale Law Journal Forum 127 (2017–2018): 780 n.4. For example, the Fourth Circuit Court of Appeals found that a 2013 voting law passed by North Caro­lina targeted Black voters with “surgical preci­sion.” N. Caro­lina State Confer­ence of NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016).

 

Section 2 of the VRA — which prohib­its discrim­in­at­ory voting prac­tices nation­wide and permits private parties and the Justice Depart­ment to chal­lenge those prac­tices in court — remains an import­ant bulwark against discrim­in­a­tion. But Section 2 lawsuits are not a substi­tute for pre-clear­ance. They are far more lengthy and expens­ive, and often do not yield remed­ies for impacted voters until after an elec­tion (or several) is over. foot­note40_xlyx­wjd 40 The Bren­nan Center’s case against Texas’s 2011 voter ID law illus­trates this point. Despite consist­ent rulings that the law was discrim­in­at­ory, it remained in effect over the course of three federal and four statewide elec­tions. The Bren­nan Center repres­en­ted the Texas State Confer­ence of the NAACP and the Mexican Amer­ican Legis­lat­ive Caucus of the Texas House of Repres­ent­at­ives, along with the Lawyers’ Commit­tee for Civil Rights Under Law and other co-coun­sel. The case was consol­id­ated with several others. For more inform­a­tion, see Bren­nan Center for Justice, “Texas NAACP v. Steen (Consol­id­ated with Veasey v. Abbott,” last updated Septem­ber 21, 2018,  https://www.bren­nan­cen­ter.org/legal-work/naacp-v-steen. See also Lopez, Shelby County.

H.R. 4 updates the VRA’s cover­age formula to restore the Act’s full force. It is backed by a thor­ough legis­lat­ive record docu­ment­ing the recent history of voter suppres­sion in U.S. elec­tions. While H.R. 4 passed in the House of Repres­ent­at­ives, it has yet to be taken up by the Senate. This crucial legis­la­tion must become law in order to fortify the right to vote and the integ­rity of our elec­tions. The For the People Act commits us to this goal.

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Restore Voting Rights to People with Prior Convic­tions

Nation­ally, state laws deny 4.5 million citizens the right to vote because of a crim­inal convic­tion — 3.2 million of whom are no longer incar­cer­ated. The laws that disen­fran­chise them origin­ate primar­ily from the Jim Crow era, shut­ting people who work, pay taxes, and raise famil­ies out of our polit­ical system. foot­note41_i1l7dne 41 Schol­ars previ­ously estim­ated that about 6.1 million citizens were disen­fran­chised nation­wide. See Chris­topher Uggen et al., 6 Million Lost Voters: State-level Estim­ates of Felony Disen­fran­chise­ment, The Senten­cing Project, 2016, 4, https://www.senten­cing­pro­ject.org/public­a­tions/6-million-lost-voters-state-level-estim­ates-felony-disen­fran­chise­ment-2016/. Flor­ida accoun­ted for approx­im­ately 1.5 million of these because its consti­tu­tion perman­ently disen­fran­chised every­one convicted of a felony. Since then, in Novem­ber 2018, Flor­ida voters approved the Voting Restor­a­tion Amend­ment, which restores voting rights to anyone who has completed all terms of their sentence. See Fl. Const. Art. VI, § 4 (2019). In Decem­ber 2019, New Jersey restored voting rights to 80,000 some people who are on parole or proba­tion, and Kentucky restored voting rights to at least 140,000 people with convic­tions in their past. Unless other­wise noted, all of the numbers cited in this testi­mony adjust for these changes. See Lori Rozsa, “‘A Joyous Day’ Ahead as 1.4 Million Flor­ida Ex-Felons Have Voting Rights Restored,” Wash­ing­ton Post, Janu­ary 5, 2019, https://www.wash­ing­ton­post.com/national/a-joyous-day-ahead-as-14-million-flor­ida-ex-felons-have-voting-rights-restored/2019/01/05/58650ee2–106f-11e9–8938–5898ad­c28­fa2_story.html?nore­dir­ect=on&utm_term=.b1dbae­a9c4a0; Bren­nan Center for Justice, “Restor­ing Voting Rights,” https://www.bren­nan­cen­ter.org/issues/restor­ing-voting-rights. We should restore voting rights to Amer­ic­ans living in the community. This would strengthen our communit­ies, offer a second chance to those who have served their time, and remove the stain of a policy born out of Jim Crow.

Disen­fran­chise­ment laws vary dramat­ic­ally from state to state. In states like Vermont and Maine, people currently in prison are allowed to vote. Some states distin­guish between differ­ent types of felon­ies, states that treat repeat offend­ers differ­ently. Juris­dic­tions also have vary­ing rules on what parts of a sentence must be completed before rights are restored, such as paying off debt or other legal finan­cing oblig­a­tions. foot­note42_bb62t9z 42 “Crim­inal Disen­fran­chise­ment Laws Across the United States,” Bren­nan Center for Justice, last modi­fied May 30, 2019, https://www.bren­nan­cen­ter.org/crim­inal-disen­fran­chise­ment-laws-across-united-states. Navig­at­ing this patch­work of state laws causes confu­sion for every­one — includ­ing elec­tion offi­cials and prospect­ive voters — about who is eligible to vote. The real-world result is large-scale disen­fran­chise­ment not only of ineligible persons but also of poten­tial voters who are eligible to register but wrongly believe they are barred from doing so by a prior convic­tion. foot­note43_ij3puf7 43 Erika Wood and Rachel Bloom, De Facto Disen­fran­chise­ment, Amer­ican Civil Liber­ties Union and Bren­nan Center for Justice, 2008, http://www.bren­nan­cen­ter.org/sites/default/files/legacy/public­a­tions/09.08.DeFacto.Disen­fran­chise­ment.pdf. The ACLU found that many elec­tions offi­cials misun­der­stand their state’s felony disen­fran­chise­ment laws, mean­ing that “untold hundreds of thou­sands of eligible, would-be voters through­out the coun­try” may be getting turned away because of misin­form­a­tion.

Regard­less of their partic­u­lar terms, crim­inal disen­fran­chise­ment laws are rooted in discrim­in­at­ory prac­tices that dispro­por­tion­ately impact Black voters. In 2016, 1 in 13 voting-age Black citizens could not vote, a disen­fran­chise­ment rate more than four times that of all other Amer­ic­ans. foot­note44_hdjn8aa 44 Uggen et al., 6 Million Lost Voters, 3. This number has not been adjus­ted for the passage of the Voting Restor­a­tion Amend­ment in Flor­ida. This unequal impact is no acci­dent—­many states’ crim­inal disen­fran­chise­ment laws are rooted in 19th-century attempts to evade the Fifteenth Amend­ment’s mandate that Black men be given the right to vote. foot­note45_krz2i5i 45 Erin Kelley, Racism and Felony Disen­fran­chise­ment, Bren­nan Center for Justice, 2017, 2, https://www.bren­nan­cen­ter.org/public­a­tion/racism-felony-disen­fran­chise­ment-inter­twined-history.

This dispro­por­tion­ate impact on people of color means that all too often, communit­ies are shut out of our demo­cracy. Disen­fran­chise­ment laws have a negat­ive ripple effect beyond those people within their direct reach. Research suggests that these laws may affect turnout in neigh­bor­hoods with high incar­cer­a­tion rates, even among citizens who are eligible to vote. foot­note46_n8x2xfl 46 Erika Wood, Restor­ing the Right to Vote, Bren­nan Center for Justice, 2009, 12,  https://www.bren­nan­cen­ter.org/public­a­tion/restor­ing-right-vote. This is not surpris­ing; Chil­dren learn civic engage­ment habits from their parents. Neigh­bors encour­age each other’s polit­ical parti­cip­a­tion. And when a signi­fic­ant portion of a community is disen­fran­chised, it sends a damaging message to others about the legit­im­acy of demo­cracy and the respect given to their voices.

The For the People Act adopts a simple and fair rule: if you are out of prison and living in the community, you get to vote in federal elec­tions. It also requires states to provide writ­ten notice to indi­vidu­als with crim­inal convic­tions when their voting rights are restored.

These changes would have a profoundly posit­ive impact on affected citizens and soci­ety. We all bene­fit from the success­ful reentry of formerly incar­cer­ated citizens into our communit­ies. Restor­ing their voting rights makes clear that they are entitled to the respect, dignity, and respons­ib­il­ity of full citizen­ship.

Voting rights restor­a­tion also bene­fits the elect­oral process by redu­cing confu­sion and easing the burdens on elec­tions offi­cials to determ­ine who is eligible to vote. If every citizen living in the community can vote, offi­cials have a bright line rule to apply. This clear rule also elim­in­ates one of the prin­cipal bases for erro­neous purges of eligible citizens from the voting rolls. foot­note47_2azddfz 47 Angela Caputo, “In the South, an Aggress­ive Effort to Purge Former Felons From Voting Rolls,” Pacific Stand­ard, Novem­ber 6, 2018, https://psmag.com/social-justice/former-confed­er­ate-states-have-purged-a-grow­ing-number-of-felons-from-voting-lists. In past elec­tions, states have botched attempts to remove Amer­ic­ans with past crim­inal convic­tions from the rolls, improp­erly remov­ing many eligible citizens. For example, in 2016 thou­sands of Arkansans were purged because of supposed felony convic­tions— but the lists used were highly inac­cur­ate, and included many who had never commit­ted a felony, or who had had their voting rights restored. foot­note48_8r119ga 48 Brater et al., Purges, 5­–6.

For these reas­ons, rights restor­a­tion is immensely popu­lar regard­less of polit­ical views. In Novem­ber 2018, 65 percent of Flor­ida voters passed a ballot initi­at­ive restor­ing voting rights to 1.4 million of their fellow resid­ents, with a massive groundswell of bipar­tisan support. Unfor­tu­nately, the state legis­lature signi­fic­antly under­cut the will of the people by condi­tion­ing rights restor­a­tion on the payment of crim­inal justice fees and fines, a move that was later upheld by a federal court of appeals. Louisi­ana, through bipar­tisan legis­la­tion, restored voting rights to nearly 36,000 people convicted of felon­ies. In Decem­ber of 2019, newly-elec­ted Governor Andy Beshear signed an exec­ut­ive order restor­ing the vote to some 140,000 Kentucki­ans. Shortly after, the New Jersey legis­lature restored voting rights to 80,000 people on parole or proba­tion. Governor Kim Reyn­olds, Repub­lican of Iowa, recently signed an exec­ut­ive order that restores voting rights to Iowans who have completed their sentences. And over the past two decades, 18 states have restored voting rights to segments of the popu­la­tion. foot­note49_nfm9­dua 49 See, e.g., “Voting Rights Restor­a­tion Efforts in Flor­ida,” Bren­nan Center for Justice, last modi­fied Novem­ber 7, 2018, accessed Febru­ary 8, 2019, https://www.bren­nan­cen­ter.org/analysis/voting-rights-restor­a­tion-efforts-flor­ida; Kevin Morris, “A Trans­form­at­ive Step for Demo­cracy in Flor­ida,” Bren­nan Center for Justice, last modi­fied Novem­ber 6, 2018, https://www.bren­nan­cen­ter.org/blog/trans­form­at­ive-step-demo­cracy-flor­ida; Myrna Pérez, “What Victory in Flor­ida Means to Me,” Bren­nan Center for Justice, last modi­fied Novem­ber 7, 2018, accessed Febru­ary 8, 2019, https://www.bren­nan­cen­ter.org/blog/what-victory-flor­ida-means-me; Ballot­pe­dia, “Flor­ida Senate Bill 7066 (2019),” accessed Janu­ary 27, 2021, <a href="https://ballot­pe­dia.org/Flor­ida_Senate_Bill_7066_(2019)">https://ballot­pe­dia.org/Flor­ida_Senate_Bill_7066_(2019)</a>; Morgan McLeod, Expand­ing the Vote: Two Decades of Felony Disen­fran­chise­ment Reform, The Senten­cing Project, 2018, 3; Michael Wines, “Kentucky Gives Voting Rights to Some 140,000 Former Felons,” New York Times, Decem­ber 12, 2019, https://www.nytimes.com/2019/12/12/us/kentucky-felons-voting-rights.html; Reid Wilson, “New Jersey Governor Signs Voting Rights Restor­a­tion Bill,” The Hill, Decem­ber 18, 2019, https://thehill.com/home­news/state-watch/475101-new-jersey-governor-signs-voting-rights-restor­a­tion-bill; Office of the Governor of Iowa Kim Reyn­olds, “Gov. Reyn­olds signs Exec­ut­ive Order to restore voting rights of felons who have completed their sentence,” August 5, 2020, <a href="https://governor.iowa.gov/press-release/gov-reyn­olds-signs-exec­ut­ive-order-to-restore-voting-rights-of-felons-who-have">https://governor.iowa.gov/press-release/gov-reyn­olds-signs-exec­ut­ive-order-to-restore-voting-rights-of-felons-who-have</a>; and Rose­mary West­wood, “The Battle for Voting Rights in the Age of Mass Incar­cer­a­tion, Vox, Novem­ber 15, 2019, https://www.vox.com/the-high­light/2019/11/8/20953476/louisi­ana-elec­tion-voting-rights-ex-pris­on­ers-felons-flor­ida.

Congress has the author­ity to act. Many state crim­inal disen­fran­chise­ment laws were enacted with a racially discrim­in­at­ory intent and have a racially discrim­in­at­ory impact, viol­at­ing the Four­teenth and Fifteenth Amend­ments, which vest Congress with broad power to enforce their protec­tions. Congress can also act under its Article I power to set the rules for federal elec­tions. The Supreme Court has previ­ously upheld the use of this power in analog­ous circum­stances, such as when Congress lowered the voting age to 18 in federal elec­tions. foot­note50_428fg6h 50 Oregon v. Mitchell, 400 U.S. 112 (1970). It is time to finally put one of the most troub­ling legacies of the Jim Crow era behind us.

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Strengthen Mail Voting Systems

The For the People Act would also create a baseline stand­ard for access to mail voting in federal elec­tions. The 2020 elec­tion season, which took place during a global pandemic, made clear that Amer­ic­ans need differ­ent options for how to vote, includ­ing the option to vote by mail, in order to accom­mod­ate the needs of a diverse elect­or­ate. What’s more: mail voting is increas­ingly popu­lar with voters. Even before the pandemic, roughly one-quarter of Amer­ican voters cast mail ballots in the 2014, 2016, and 2018 pres­id­en­tial elec­tions. foot­note51_efr8pil 51 United States Elec­tions Project, “2020 General Elec­tion Early Vote Stat­ist­ics,” last modi­fied Novem­ber 23, 2020, https://elect­pro­ject.github.io/Early-Vote-2020G/index.html and U.S. Elec­tion Assist­ance Commis­sion, Elec­tion Admin­is­tra­tion and Voting Survey, 2018 Compre­hens­ive Report, A Report to the 116th Congress, June 2019, 11, https://eac.gov/sites/default/files/eac_assets/1/6/2018_EAVS_Report.pdf.  That percent­age shot up this past Novem­ber, as more than 65 million Amer­ic­ans success­fully and securely voted by mail. foot­note52_cp0r­wpm 52 United States Elec­tions Project, “2016 Novem­ber General Elec­tion Early Voting,” accessed Janu­ary 27, 2021, http://www.elect­pro­ject.org/early_2016.  Increased mail voting undoubtedly contrib­uted to the surge in parti­cip­a­tion in the 2020 elec­tions, which reached 66.7 percent of the voting-eligible popu­la­tion (over 159 million people), the highest rate in over a century. foot­note53_hl1bl4d 53 United States Elec­tions Project, “2020 General Elec­tion Turnout Rates,” last modi­fied Decem­ber 7, 2020, https://www.wash­ing­ton­post.com/graph­ics/2020/elec­tions/voter-turnout/.

This surge in mail voting was enabled by signi­fic­ant expan­sions of access to mail voting in many states. These reforms included broad­en­ing the scope of who could vote by mail; auto­mat­ic­ally mail­ing ballot applic­a­tions or ballots to eligible voters; imple­ment­ing better processes for voters to receive notice of and cure defect­ive mail ballots; and extend­ing ballot return dead­lines, among other crit­ical reforms. foot­note54_ikm4931 54 Wendy Weiser et al, Mail Voting: What Has Changed in 2020, Bren­nan Center for Justice, Septem­ber 17, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/mail-voting-what-has-changed-2020.

Unfor­tu­nately, although the 2020 elec­tion demon­strated the value of mail voting, it also exposed the defi­cien­cies and inequit­ies of mail voting systems in many states. First, many of the changes that increased access to mail voting were made through tempor­ary legis­la­tion or time­bound exec­ut­ive orders that expired after the 2020 general elec­tion. Second, even in the face of the pandemic, a number of states contin­ued to place unreas­on­able restric­tions on the abil­ity to vote by mail. For example, five states contin­ued to require voters to provide an excuse for not voting in person. That was down from 17 states the previ­ous elec­tion cycle, but only 1 of the states that elim­in­ated excuse require­ments passed legis­la­tion to do so perman­ently. foot­note55_kr0xu5t 55 United States Elec­tions Project, “2020 General Elec­tion Early Vote Stat­ist­ics,” last modi­fied Novem­ber 23, 2020, https://elect­pro­ject.github.io/Early-Vote-2020G/index.html and Eliza Sweren-Becker, Anne Glatz, and Elisa­beth Camp­bell, “Voting During Covid-19,” Bren­nan Center for Justice, last modi­fied Novem­ber 20, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/voting-during-covid-19.

In addi­tion, eight states still required voters to obtain a witness signa­ture or notary to cast a mail ballot. And in 28 states, ballots could still be rejec­ted for tech­nical defects unre­lated to voter eligib­il­ity, without any notice or oppor­tun­ity to correct the issue after Elec­tion Day. foot­note56_7xa8erc 56 Bren­nan Center for Justice, “Prepar­ing Your State for an Elec­tion Under Pandemic Condi­tions,” last modi­fied Octo­ber 26, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/prepar­ing-your-state-elec­tion-under-pandemic-condi­tions#t3.  Three closely contested states — Iowa, Ohio, and Texas — also limited the use of secure ballot drop boxes for voters to submit their absentee ballots. Simil­arly, Pennsylvania tossed thou­sands of votes from eligible voters who did not place their absentee ballots in a so-called “privacy sleeve” (an extra envel­ope that encases a ballot within a mail­ing envel­ope). foot­note57_b1h8z5x 57 David Mont­gomery, “The Texas Supreme Court Upholds the Governor’s Order for a Single Ballot Drop Box Per County,” New York Times, Octo­ber 28, 2020, https://www.nytimes.com/2020/10/28/us/elec­tions/the-texas-supreme-court-upholds-the-governors-order-for-a-single-ballot-drop-box-per-county.html; NBC News, “Dispute over Ohio mail ballot drop box limit ends as advoc­ates drop suit,” Octo­ber 23, 2020, https://www.nbcnews.com/polit­ics/2020-elec­tion/dispute-over-ohio-mail-ballot-drop-box-limit-ends-advoc­ates-n1244584; Ryan Foley, “Judge Backs Iowa’s Limits on Absentee Ballot Drop Box Sites,” The Gazette, Octo­ber 29, 2020, https://www.thegaz­ette.com/subject/news/govern­ment/iowa-elec­tion-absentee-ballot-drop-box-paul-pate-20201029; and Pat Beall, “Fewer Rejec­ted Ballots Seemed to Be a Win for Voter Access. Trump and Others Disagree,” USA Today, Decem­ber 28, 2020, https://www.usat­oday.com/story/news/invest­ig­a­tions/2020/12/28/trump-and-others-not-happy-lower-2020-rejec­ted-ballot-numbers/3964007001/.  Barri­ers to mail voting had a dispro­por­tion­ately negat­ive impact on Black and brown voters. foot­note58_5xxn­peg 58 Jane Timm, “A White Person and a Black Person Vote by Mail in the Same State. Whose Ballot is More Likely to Be Rejec­ted?” NBC News, August 9, 2020, https://www.nbcnews.com/polit­ics/2020-elec­tion/white-person-black-person-vote-mail-same-state-whose-ballot-n1234126.  And they would have likely disen­fran­chised far more people had voter mobil­iz­a­tion not been so high.

In the face of ongo­ing efforts to unreas­on­ably limit mail voting options, the For the People Act would make concrete improve­ments to guar­an­tee all voters reas­on­able, secure access to this method for cast­ing a ballot.

To start, the act requires states to give every voter the option to vote by mail. It also removes a key barrier to access­ing mail voting by requir­ing prepaid post­age for all elec­tion mater­i­als, includ­ing regis­tra­tion forms and ballot applic­a­tions. In addi­tion to making it easier to request a mail ballot, the act simpli­fies the process of return­ing the ballot by requir­ing states to provide drop boxes for federal races, as well as by clari­fy­ing that all voted mail ballots should be carried free of post­age. In states where most or all voters vote by mail, easy access to drop boxes is considered a best prac­tice, as drop boxes are secure and conveni­ent, enabling a speedier ballot deliv­ery than the postal service. In 2016, a major­ity of voters in Color­ado (73 percent), Oregon (59 percent), and Wash­ing­ton (65 percent), — all “vote at home” states — chose to return their ballots to a phys­ical loca­tion rather than send them via mail. foot­note59_r4y6xex 59 Lisa Danetz, Mail Ballot Secur­ity Features: A Primer, Bren­nan Center for Justice, Octo­ber 16, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/mail-ballot-secur­ity-features-primer.

The act would also require states to provide voters with a way to track their mail ballot and confirm its receipt. The abil­ity to track a ballot is import­ant for elec­tion secur­ity, as elec­tion offi­cials can locate lost ballots. Like­wise, it ensures that every valid vote is coun­ted by empower­ing voters to confirm the arrival of their ballot. foot­note60_x0stin6 60 Danetz, Mail Ballot Secur­ity Features. The For the People Act allows states to access funds alloc­ated in the Help Amer­ica Vote Act to develop such a program.

Many elec­tion offi­cials support the expan­sion of mail voting. foot­note61_b3s3rb4 61 Wendy Weiser and Domi­n­ique Erney, Bipar­tisan Support for Expan­ded Mail Voting for 2020 Elec­tions, Bren­nan Center for Justice, April 15, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/bipar­tisan-support-expan­ded-mail-voting-2020-elec­tions; Amy Gard­ner, Elise Viebeck, and Joseph Marks, “Elec­tion Offi­cials in Both Parties Call for Emer­gency Fund­ing to Expand Voting by Mail Before Novem­ber,” Wash­ing­ton Post, March 24, 2020, https://www.wash­ing­ton­post.com/polit­ics/elec­tion-offi­cials-in-both-parties-call-for-emer­gency-fund­ing-to-expand-voting-by-mail-before-novem­ber/2020/03/23/7d619400–6d24–11ea-aa80-c2470c6b2034_story.html.  In addi­tion to easing access to the ballot, increased mail voting light­ens the admin­is­trat­ive burden on our in-person voting systems. If more people can vote early by mail, that means fewer voters have to wait in line at the polls. Elec­tion offi­cials and experts agree that mail voting is highly secure. All mail ballots are marked by hand, which means there is a paper trail to enable effect­ive post-elec­tion audits. foot­note62_zd07f64 62 Danetz, Mail Ballot Secur­ity Features. Enhanced mail voting can lead to a smoother elec­tion exper­i­ence for voters and offi­cials alike.

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Insti­tute Nation­wide Early Voting

Every year, Amer­ic­ans across the coun­try struggle to get to the polls on Elec­tion Day. Full-time jobs, child­care needs, disab­il­it­ies, and other factors prevent them from trav­el­ing to their polling place to cast a ballot. Some­times, even after making the time and the jour­ney, long lines cause them to turn away. We should alle­vi­ate this prob­lem by guar­an­tee­ing a minimum two-week period for early voting in federal elec­tions.

Hold­ing elec­tions on a single work­day in mid-Novem­ber is a relic of the 19th century. It was done for the conveni­ence of farm­ers who had to ride a horse and buggy to the county seat in order to cast a ballot. foot­note63_ftxuer2 63 Wendy Weiser and Alicia Bannon, Demo­cracy: An Elec­tion Agenda for Candid­ates, Activ­ists, and Legis­lat­ors, May 2018, 7, https://www.bren­nan­cen­ter.org/our-work/policy-solu­tions/demo­cracy-elec­tion-agenda-candid­ates-activ­ists-and-legis­lat­ors. This no longer works for millions across the coun­try. Early voting helps to modern­ize the elect­oral process to make it easier for hard­work­ing Amer­ic­ans to get to the polls. It also helps to minim­ize crowding at polling places.

Forty-five states and the District of Columbia offered some oppor­tun­ity to vote in person before Elec­tion Day in 2020. More than a dozen of those states offer early voting for a period compar­able to or greater than the two-week period lead­ing to Elec­tion Day required by the For the People Act. foot­note64_bzujuqw 64 Bren­nan Center for Justice, “Prepar­ing Your State for an Elec­tion Under Pandemic Condi­tions”; National Confer­ence of State Legis­latures, “State Laws Govern­ing Early Voting,” last modi­fied Janu­ary 25, 2019, http://www.ncsl.org/research/elec­tions-and-campaigns/early-voting-in-state-elec­tions.aspx; and National Confer­ence of State Legis­latures, “Early and Absentee Voting,” last modi­fied August 2, 2019, http://www.ncsl.org/research/elec­tions-and-campaigns/absentee-and-early-voting.aspx. But the absence of a national stand­ard means that some states have few or incon­sist­ent early voting hours. Other states have engaged in politi­cized cutbacks to early voting. Over the past decade, multiple states have reduced early voting days and/or sites used dispro­por­tion­ately by Black voters, such as by elim­in­at­ing early voting on the Sunday before Elec­tion Day. Federal courts have struck down these kinds of early voting cutbacks in North Caro­lina and Wiscon­sin because they were inten­tion­ally discrim­in­at­ory. foot­note65_cfitj67 65 Bren­nan Center for Justice, “New Voting Restric­tions in Amer­ica;” NC State Confer­ence of NAACP v. McCrory, 831 F.3d 204, 219; One Wiscon­sin Inst., Inc. v. Thom­sen, 198 F. Supp. 3d 896, 925 (W.D. Wis. 2016).

The For the People Act will make voting more manage­able by requir­ing that states provide two weeks of early voting and equit­able geographic distri­bu­tion of early voting sites. A guar­an­teed early voting period will reduce long lines at the polls and ease the pres­sure on elec­tion offi­cials and poll work­ers on Elec­tion Day. It will also make it easier for elec­tion offi­cials to spot and solve prob­lems like regis­tra­tion errors or voting machine glitches before they impact most voters. For these reas­ons, elec­tion offi­cials report high satis­fac­tion with early voting. Early voting is popu­lar with voters too, with study after study show­ing a signi­fic­ant posit­ive effect­ive on voter satis­fac­tion. foot­note66_5xu39f7 66 Diana Kasdan, Early Voting: What Works, Bren­nan Center for Justice, 2013, 5–8, https://www.bren­nan­cen­ter.org/public­a­tion/early-voting-what-works.

Early voting is a crit­ical element of a conveni­ent and modern voting system. A national stand­ard is long over­due.

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Prevent­ing Unreas­on­able Wait Times at the Polls

The For the People Act will require states to make voting more access­ible by cutting down on long wait times at the polls.

Far too often, voters arrive at their precincts only to find out that they must wait in unreas­on­ably long lines to cast a ballot. In the 2020 midterms, for example, voters in metro­pol­itan areas across the coun­try — from Atlanta to Phil­adelphia to Milwau­kee — were forced to wait in hours-long lines at the polls. foot­note67_ga1o3l0 67 Astead W. Herndon and Stephanie Saul, “Major Prob­lems With Voting in Atlanta as 5 States Hold Primar­ies,” New York Times, June 9, 2020, https://www.nytimes.com/2020/06/09/us/polit­ics/geor­gia-primary-voting-atlanta.html; Reid J. Epstein and Nick Corasaniti, “Pandemic, Protests and Police: A Primary Elec­tion Like No Other,” New York Times, June 2, 2020, https://www.nytimes.com/2020/06/02/us/polit­ics/june-2-primary-elec­tion-day-voting.html; and Mary Spicuzza, “'A very sad situ­ation for voters’: Milwau­keeans brave wait times as long as 2 1/2 hours, top elec­tion offi­cial says,” Milwau­kee Journal Sentinel, April 7, 2020, https://www.json­line.com/story/news/polit­ics/elec­tions/2020/04/07/wiscon­sin-elec­tion-milwau­kee-voters-brave-long-wait-lines-polls/2962228001/.  A study of the 2018 midterm elec­tions estim­ated that 3 million voters waited longer than half an hour to vote (and many waited much longer). foot­note68_4dw28sw 68 Hannah Klain, Kevin Morris, and Rebecca Ayala, Wait­ing to Vote, Bren­nan Center for Justice, June 3, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/wait­ing-vote.  The uncon­scion­ably (but all-too-famil­iar) long lines in the 2012 elec­tion promp­ted Pres­id­ent Obama to insti­tute a bipar­tisan commis­sion to develop recom­mend­a­tions to reduce wait times. foot­note69_fglfazo 69 Bren­nan Center for Justice, “Bipar­tisan Pres­id­en­tial Commis­sion Endorses Modern­iz­ing Voter Regis­tra­tion,” Decem­ber 1, 2014, https://www.bren­nan­cen­ter.org/our-work/research-reports/bipar­tisan-pres­id­en­tial-commis­sion-endorses-modern­iz­ing-voter.  Long lines are incon­veni­ent for all voters, but they are an espe­cially heavy burden for voters with disab­il­it­ies, those who may be miss­ing work to vote, and those with care­giv­ing respons­ib­il­it­ies. For too many, a long line can mean a lost vote.

Long lines do not affect all voters equally; a grow­ing body of research shows that they dispro­por­tion­ately plague Black and Latino voters. foot­note70_54ssh61 70 Michael C. Herron and Daniel A. Smith, “Precinct Clos­ing Times in Flor­ida During the 2012 General Elec­tion,” Elec­tion Law Journal 14.3 (2015): 220–238; Stephen Petti­grew, “The Racial Gap in Wait Times: Why Minor­ity Precincts Are Under­served by Local Elec­tion Offi­cials,” Polit­ical Science Quarterly 132 (2017): 527; M. Keith Chen, et al., “Racial Dispar­it­ies in Voting Wait Times: Evid­ence from Smart­phone Data,” Review of Economic Stat­ist­ics (2019): 1–27; and Stephen Petti­grew, “The down­stream consequences of long waits: How lines at the precinct depress future turnout,” Elect­oral Stud­ies 102188 (2020).  A Bren­nan Center study of the 2018 elec­tion found that Black and Latino voters waited on aver­age 45 and 46 percent longer than white voters respect­ively. foot­note71_1qf4bta 71 Klain, Morris, and Ayala, Wait­ing to Vote.  These racial dispar­it­ies persisted in the 2020 primary elec­tions, in which the longest wait times were seen in juris­dic­tions with the largest concen­tra­tions of nonwhite voters. foot­note72_9kfwh0x 72 Evan Nicole Brown, “What It’s Been Like to Vote in 2020 So Far,” New York Times, July 14, 2020, https://www.nytimes.com/2020/07/14/us/polit­ics/voting-lines-2020-elec­tions.html.

Excess­ive wait times are an avoid­able prob­lem. The For the People Act sets a legal stand­ard that no indi­vidual shall be required to wait longer than 30 minutes to cast a ballot. (This was the stand­ard recom­men­ded by the bipar­tisan Pres­id­en­tial Commis­sion on Elec­tion Admin­is­tra­tion in 2013.) Addi­tion­ally, it directs states to equit­ably alloc­ate voting systems, poll work­ers, and other elec­tion resources to ensure fair and equit­able wait times for all voters. And it directs the Elec­tion Assist­ance Commis­sion and the comp­troller general to study the places that have struggled the most with long lines to ensure that the most effect­ive prac­tices can be put in place.

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Protect Against Decept­ive Prac­tices

Attempts to suppress voting through decep­tion and intim­id­a­tion remain all too wide­spread. Every elec­tion cycle, these tactics are docu­mented by journ­al­ists and nonpar­tisan Elec­tion Protec­tion volun­teers. foot­note73_muyzjha 73 Sean Morales-Doyle and Sidni Fred­er­ick, “Inten­tion­ally Deceiv­ing Voters Should Be a Crime,” The Hill, August 8, 2018, https://thehill.com/opin­ion/civil-rights/400941-inten­tion­ally-deceiv­ing-voters-should-be-a-crime. This is not a new prob­lem, but social media plat­forms make the mass dissem­in­a­tion of mislead­ing inform­a­tion easy and allow for perpet­rat­ors to target partic­u­lar audi­ences with disturb­ing preci­sion. In 2016, they were espe­cially preval­ent, and not just on the part of domestic actors. Russian oper­at­ives also engaged in a concer­ted disin­form­a­tion and propa­ganda campaign over the inter­net that aimed, in part, to suppress voter turnout, espe­cially among Black voters. foot­note74_mz7h­hdt 74 New Know­ledge, SSCI Research Summary: An Assess­ment of the Inter­net Research Agency’s U.S.-Direc­ted Activ­it­ies in 2015–2017 Based on Plat­form-Provided Data, 2018, 5, 106,  https://cdn2.hubspot.net/hubfs/4326998/SSCI%20Present­a­tion%20fi­nal.pdf We should increase protec­tions against such efforts.

While federal law already prohib­its voter intim­id­a­tion, fraud, and inten­tional efforts to deprive others of their right to vote, exist­ing laws have not been strong enough to deter miscon­duct. Moreover, no law specific­ally targets decept­ive prac­tices, nor is there any author­ity charged with invest­ig­at­ing such prac­tices and provid­ing voters with correc­ted inform­a­tion.

The For the People Act protects voters from decep­tion and intim­id­a­tion in three ways. First, it increases crim­inal penal­ties for false or mislead­ing state­ments, as well as intim­id­a­tion, aimed at imped­ing or prevent­ing a person from voting or regis­ter­ing to vote. Second, it empowers citizens to go to court to stop voter decep­tion. Third, it blunts the effect of decept­ive inform­a­tion by requir­ing desig­nated govern­ment offi­cials to dissem­in­ate accur­ate, correct­ive inform­a­tion to voters. These provi­sions will give federal law enforce­ment agen­cies and private citizens the oppor­tun­ity to stop bad actors from under­min­ing our elec­tions.

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End Notes

Campaign Finance

We also need to over­haul the role of money in polit­ics. Thanks in part to Citizens United v. FEC and other harm­ful court decisions, a small class of wealthy donors has achieved unpre­ced­en­ted clout in Amer­ican elec­tions. foot­note1_c6utj08 1 Ian Vandewalker, “Since Citizens United, a Decade of Super PACs,” Bren­nan Center for Justice, Janu­ary 14, 2020, https://www.bren­nan­cen­ter.org/our-work/analysis-opin­ion/citizens-united-decade-super-pacs. See also Ian Vandewalker, “The 2018 Small Donor Boom Was Drowned Out by Big Donors, Thanks to Citizens United,” Bren­nan Center for Justice, Janu­ary 10, 2020, https://www.bren­nan­cen­ter.org/our-work/analysis-opin­ion/2018-small-donor-boom-was-drowned-out-big-donors-thanks-citizens-united. That distorts our demo­cracy and under­mines the will of Amer­ican voters. We should pass reforms to coun­ter­act the worst effects of Citizens United and amplify the voices of every­day Amer­ic­ans in our campaigns.


Small Donor Public Finan­cing

To truly coun­ter­act the worst effects of Citizens United, we need to create a small-donor public finan­cing system for federal elec­tions. This reform will give candid­ates a viable option to fund their campaigns without rely­ing on wealthy campaign donors and enable work­ing Amer­ic­ans to increase the finan­cial support they can provide to candid­ates who cham­pion their policy pref­er­ences.

Amer­ica’s system of privately financed campaigns gives a small minor­ity of wealthy donors and special interests unpar­alleled sway. Super PACs — polit­ical commit­tees that can raise and spend unlim­ited funds thanks to Citizens United  have raised more than $8 billion to spend on influ­en­cing elec­tions. foot­note2_4s8mkuc 2 See Center for Respons­ive Polit­ics, “Super PACs,” accessed Janu­ary 28, 2021, https://www.open­secrets.org/outsides­pend­ing/summ.php?chrt=V&type=S. As of 2018, roughly $1 billion had come from just 11 people foot­note3_cihg2xb 3 Michelle Ye Hee Lee, “Eleven Donors Have Plowed $1 Billion into Super PACs Since They Were Created,” Wash­ing­ton Post, Octo­ber 26, 2018, https://beta.wash­ing­ton­post.com/polit­ics/eleven-donors-plowed-1-billion-into-super-pacs-since-2010/2018/10/26/31a07510-d70a-11e8-aeb7-ddcad4a0a54e_story.html. Dark money groups that keep their donors secret, but which we know are funded by many of the same donors who back super PACs, have spent well over $1 billion more. foot­note4_hnom­mxs 4 Center for Respons­ive Polit­ics, “Polit­ical Nonprofits (Dark Money),” accessed Janu­ary 28 2021, https://www.open­secrets.org/outsides­pend­ing/nonprof_summ.php. Over­all, in the decade since Citizens United, donors who give more than $100,000 have come to domin­ate federal campaign fundrais­ing. Even during the supposed small donor boom of the 2018 midterms, the roughly 3,500 donors who contrib­uted at least $100,000 easily outspent all indi­vidual small donors (of $200 or less), who numbered at least 7 million. foot­note5_sy7lp2p 5 Vandewalker, “The 2018 Small Donor Boom.” In fact, while the number of small indi­vidual donors has increased in recent years in abso­lute terms, their total share of federal campaign spend­ing has remained flat, account­ing for about 20 percent of total dona­tions. foot­note6_rl3k­b6w 6 Vandewalker, “The 2018 Small Donor Boom”; Center for Respons­ive Polit­ics, “Most Expens­ive Midterm Ever: Cost of 2018 Elec­tion Surpasses $5.7 Billion,” Febru­ary 6, 2019, https://www.open­secrets.org/news/2019/02/cost-of-2018-elec­tion-5pnt7bil/. In the two most recent midterm elec­tions, the top 100 super PAC donors gave almost as much as all the millions of small donors combined. foot­note7_7e5r9qw 7 Center for Respons­ive Polit­ics, “2018 Super PACs: How Many Donors Give,” accessed Septem­ber 16, 2019, https://www.open­secrets.org/outside-spend­ing/donor-stats?cycle=2018&type=B; Center for Respons­ive Polit­ics, “2014 Super PACs: How Many Donors Give,” accessed Septem­ber 16, 2019, https://www.open­secrets.org/outside-spend­ing/donor-stats?cycle=2014&type=B; The 2018 midterms were also notable for how many wealthy self-funders won office. Center for Respons­ive Polit­ics, “Most expens­ive midterm ever.”

The outsized role of large campaign donors forces candid­ates to spend an inor­din­ate amount of time focused on their concerns. One party fundrais­ing present­a­tion from several years ago sugges­ted that new repres­ent­at­ives spend four hours a day soli­cit­ing large contri­bu­tions. foot­note8_orfn0sh 8 Ryan Grim and Sabrina Siddiqui, “Call Time for Congress Shows How Fundrais­ing Domin­ates Bleak Work Life,” Huff­Post, last updated Decem­ber 6, 2017, https://www.huff­post.com/entry/call-time-congres­sional-fundrais­ing_n_2427291. As Senator Chris Murphy of Connecti­cut noted of the hours he spent call­ing donors, “I talked a lot more about carried interest inside of that call room than I did at the super­mar­ket. [Wealthy donors] have funda­ment­ally differ­ent prob­lems than other people . . . And so you’re hear­ing a lot about prob­lems that bankers have and not a lot of prob­lems that people who work in the mill in Thoma­s­ton, Conn., have.” foot­note9_203n7c3 9 Paul Blumenthal, “Chris Murphy: ‘Soul-Crush­ing’ Fundrais­ing Is Bad For Congress,” Huff­Post, May 7, 2013, https://www.huff­post.com/entry/chris-murphy-fundrais­ing_n_3232143.

Unsur­pris­ingly given this dynamic, research­ers find that govern­ment policy is much more respons­ive to the pref­er­ences of the wealthy and busi­ness interest groups than those of aver­age citizens.

In 2017, for example, Congress passed a $1.5 tril­lion corpor­ate tax over­haul, an avowedly donor-driven initi­at­ive that enjoyed tepid public support at best. foot­note10_19pgght 10 See Daniel I. Weiner, “The Tax Over­haul is Proof that Money in Polit­ics Affects All of Us,” Bren­nan Center for Justice, Decem­ber 4, 2017, https://www.bren­nan­cen­ter.org/blog/tax-over­haul-proof-money-polit­ics-affects-all-us; and Alex Isan­stadt and Gabriel Debene­detti, “Angry GOP Donors Close Their Wallets,” Politico, Octo­ber 5, 2017, https://www.politico.com/story/2017/10/05/repub­lican-donors-trump-mccon­nell-anger-243449. See also Martin Gilens and Benjamin I. Page, “Test­ing Theor­ies of Amer­ican Polit­ics: Elites, Interest Groups, and Aver­age Citizens,” Perspect­ives on Polit­ics 12 (2014): 575–576,  https://scholar.prin­ceton.edu/sites/default/files/mgilens/files/gilens_and_page_2014_-test­ing_theor­ies_of_amer­ican_polit­ics.doc.pdf. The tax bill made it over the finish line in part because of expli­cit warn­ings that “finan­cial contri­bu­tions will stop” if it failed to pass. foot­note11_zoixmd3 11 Rebecca Savransky, “Graham: ‘Fin­an­cial contri­bu­tions will stop’ if GOP does­n’t pass tax reform,” The Hill, Nov. 9, 2017, https://thehill.com/policy/finance/359606-graham-finan­cial-contri­bu­tions-will-stop-if-gop-doesnt-pass-tax-reform; Weiner, “The Tax Over­haul;” Alana Abramson, “The Repub­lican Tax Bill Is Unpop­u­lar With Voters. But Here’s Who Loves It,” Fortune, Dec. 4, 2017, https://fortune.com/2017/12/04/repub­lican-tax-bill-donors/. There are many other examples of govern­ment policy align­ing more with the pref­er­ences of the donor class than with those of most other Amer­ic­ans, espe­cially with respect to issues related to wealth inequal­ity, like wages, hous­ing, and finan­cial regu­la­tion. foot­note12_5uzip46 12 Rebecca Savransky, “Graham: ‘Fin­an­cial Contri­bu­tions Will Stop’ if GOP Does­n’t Pass Tax Reform,” The Hill, Novem­ber 9, 2017, https://thehill.com/policy/finance/359606-graham-finan­cial-contri­bu­tions-will-stop-if-gop-doesnt-pass-tax-reform; Weiner, “The Tax Over­haul"; and Alana Abramson, “The Repub­lican Tax Bill Is Unpop­u­lar With Voters. But Here’s Who Loves It,” Fortune, Decem­ber 4, 2017, https://fortune.com/2017/12/04/repub­lican-tax-bill-donors/.

The clout that donors wield in our polit­ical system has contrib­uted to a sense of power­less­ness on the part of millions of every­day Amer­ic­ans. Over­whelm­ing major­it­ies tell poll­sters that corrup­tion is wide­spread in the federal govern­ment, that they believe people who give a lot of money to elec­ted offi­cials have more influ­ence than others, that money has too much influ­ence in polit­ical campaigns, and that they blame money in polit­ics and wealthy donors for dysfunc­tion is the U.S. polit­ical system. foot­note13_5jzhye8 13 Scott Rasmussen, “Voters Rate Polit­ical Corrup­tion as Amer­ica’s Biggest Crisis,” Real­Clear­Polit­ics, Aprril 25, 2019, https://www.real­clear­polit­ics.com/articles/2019/04/25/voters_rate_polit­ical_corrup­tion_as_amer­icas_biggest_crisis_140156.html; Brad­ley Jones, “Most Amer­ic­ans Want to Limit Campaign Spend­ing, Say Big Donors Have Greater Polit­ical Influ­ence,” Pew Research Center, May 8, 2018, https://pewre­search.org/fact-tank/2018/05/08/most-amer­ic­ans-want-to-limit-campaign-spend­ing-say-big-donors-have-greater-polit­ical-influ­ence/; “Amer­ic­ans’ Views on Money in Polit­ics,” New York Times, June 2, 2015, https://www.nytimes.com/inter­act­ive/2015/06/02/us/polit­ics/money-in-polit­ics-poll.html?_r=0; John Wagner and Scott Clem­ent, “‘It’s Just Messed Up’: Most Think Polit­ical Divi­sions as Bad as Viet­nam Era, New Poll Shows,” Wash­ing­ton Post, Octo­ber 28, 2017, https://www.wash­ing­ton­post.com/graph­ics/2017/national/demo­cracy-poll/.

The cent­ral role of wealthy private donors poses special chal­lenges for communit­ies of color. At the highest contri­bu­tion levels, the donor class has long been over­whelm­ingly white (and dispro­por­tion­ately male). foot­note14_bhcftdf 14 Sean McEl­wee, Brian Schaffner, and Jesse Rhodes, Whose Voice, Whose Choice? The Distort­ing Influ­ence of the Polit­ical Donor Class in Our Big-Money Elec­tions, Demos, 2016, 1–3,  https://www.demos.org/sites/default/files/public­a­tions/Whose%20Voice%20Whose%20Choice_2.pdf. One consequence is that policies that would dispro­por­tion­ally bene­fit people of color, such as rais­ing the minimum wage, tend to be much more popu­lar with ordin­ary people than with influ­en­tial polit­ical donors. foot­note15_dzu4by1 15 Lioz, Stacked Deck. The cost of campaigns is also a barrier to people of color running for office, espe­cially women. foot­note16_aeb4zpx 16 Paru Shah, “It Takes a Black Candid­ate: A Supply-Side Theory of Minor­ity Repres­ent­a­tion,” Polit­ical Research Quarterly 67 (2014): 267–268, https://journ­als.sage­pub.com/doi/abs/10.1177/1065912913498827; Laura Albright, Not Simply Black and White: The Rela­tion­ship between Race/Ethni­city and Campaign Finance in State Legis­lat­ive Elec­tions (paper presen­ted at Annual Meet­ing of the Amer­ican Polit­ical Science Asso­ci­ation, Wash­ing­ton, DC, August 4, 2014), 29–30, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2475889; see also Kate Zernike, “Female Candid­ates Break Barri­ers, Except When It Comes to Money,” New York Times, Octo­ber 30, 2018, https://www.nytimes.com/2018/10/30/us/polit­ics/women-campaign-fundrais­ing.html (find­ing that judi­cial candid­ates of color, espe­cially women, raised fewer funds than their white coun­ter­parts in both partisan and nonpar­tisan races). In 2018, Black women running for Congress raised only a third of what other female candid­ates received from large donors. foot­note17_3hbxxxb 17 Sarah Bryner and Grace Haley, Race, Gender, and Money in Polit­ics: Campaign Finance and Federal Candid­ates in the 2018 Midterms, work­ing paper, March 15, 2019, 23, https://www.pgpf.org/sites/default/files/US-2050-Race-Gender-and-Money-in-Polit­ics-Campaign-Finance-and-Federal-Candid­ates-in-the-2018-Midterms.pdf. Facing these struc­tural barri­ers, poten­tial candid­ates often decline to run at all — as one oper­at­ive notes, “[e]specially for black women, rais­ing money is often­times a major deterrent to why they don’t get into polit­ics or run for elec­tion.” foot­note18_xh2bi2d 18 Kate Ackley, “Women — and the Power of the Purse — Will Be Key in 2018,” Roll Call, Octo­ber 26, 2017, https://www.rollcall.com/news/polit­ics/99810–2.

The For the People Act addresses these prob­lems head-on by ampli­fy­ing the voices of the every­day voters, primar­ily through small donor match­ing. Small donor match­ing is a path­break­ing solu­tion to the prob­lem of big money in polit­ics. While its poten­tial may be profound, the basics of this system are simple. Candid­ates opt into the system by rais­ing enough small start-up dona­tions to qual­ify and accept­ing certain condi­tions such as lower contri­bu­tion limits. Donors who give to parti­cip­at­ing candid­ates in small amounts will then see their contri­bu­tions matched by public money. The For the People Act would match dona­tions to parti­cip­at­ing House and Senate candid­ates of $1-$200 at a six-to-one ratio, the same ratio used until recently in New York City’s highly success­ful program. foot­note19_g2qc49w 19 Bren­nan Center for Justice, “The Case for Small Donor Public Finan­cing in New York State,” Febru­ary 26, 2019, https://www.bren­nan­cen­ter.org/our-work/policy-solu­tions/case-small-donor-public-finan­cing-new-york; Gareth Fowler and Dan Weiner, “Under­stand­ing H.R. 1’s Public Finan­cing Provi­sions,” Bren­nan Center for Justice, Septem­ber 20, 2019, https://www.bren­nan­cen­ter.org/sites/default/files/analysis/Under­stand­ing%20HR1%20Pub­lic%20Fin­an­cing.pdf. In 2018, New York City voted over­whelm­ingly to raise the match to an 8-to-1 ratio.

Small donor match­ing has a long and success­ful history in Amer­ican elec­tions. It was first proposed more than a century ago by Pres­id­ent Theodore Roosevelt. Congress incor­por­ated a one-to-one small donor match for primar­ies into the pres­id­en­tial public finan­cing system enacted in 1971. The vast major­ity of major party pres­id­en­tial candid­ates from 1976 to 2008 used match­ing funds in their primary campaigns. Thanks to the pres­id­en­tial public finan­cing system, Ronald Reagan was reelec­ted by a land­slide in 1984 without hold­ing a single fundraiser. Two years later, the bipar­tisan Commis­sion on National Elec­tions concluded that “public finan­cing of pres­id­en­tial elec­tions has clearly proved its worth in open­ing up the process, redu­cing the influ­ence of indi­vidu­als and groups, and virtu­ally ending corrup­tion in pres­id­en­tial elec­tion finance.” foot­note20_m8wy46p 20 Adam Skaggs and Fred Wertheimer, Empower­ing Small Donors in Federal Elec­tions, Bren­nan Center for Justice, 2012, 8, 10–11, https://www.bren­nan­cen­ter.org/public­a­tion/empower­ing-small-donors-federal-elec­tions; Brent Ferguson, State Options for Reform, Bren­nan Center for Justice, 2015, 10, https://www.bren­nan­cen­ter.org/sites/default/files/public­a­tions/State_Options_for_Reform_FINAL.pdf.

Small donor match­ing has also found success at the state level, where it has been adop­ted in a wide vari­ety of juris­dic­tions — includ­ing most recently in New York State. foot­note21_jik4lz3 21 A number of states, includ­ing Flor­ida, Michigan, and New Jersey, provide match­ing funds in governor races. See Juhem Navarro-Rivera and Emmanuel Caicedo, Public Fund­ing for Elect­oral Campaigns: How 27 States, Coun­tries, and Muni­cip­al­it­ies Empower Small Donors and Curb the Power of Big Money in Polit­ics, Demos, 2017, https://www.demos.org/sites/default/files/public­a­tions/Public_Finan­cing_Factsheet_FA[5].pdf. In 2019, New York State created a Public Finan­cing Commis­sion to devise a public finan­cing system for state elec­tions. The commis­sion recom­men­ded the creation of a small donor-match­ing program similar to the New York City system. Bren­nan Center for Justice, “Bren­nan Center Responds to New York State Public Finan­cing Commis­sion Vote and Draft Recom­mend­a­tions,” Novem­ber 25, 2019, https://www.bren­nan­cen­ter.org/our-work/analysis-opin­ion/bren­nan-center-responds-new-york-state-public-finan­cing-commis­sion-vote. Compre­hens­ive match­ing already exists in many other large, diverse muni­cip­al­it­ies besides New York City, includ­ing Los Angeles, Tucson, Wash­ing­ton, DC, Mont­gomery County, Mary­land, Prince George’s County, Mary­land, and others. See Navarro-Rivera and Caicedo, Public Fund­ing for Elect­oral Campaigns; Martin Auster­muhle, “Bowser Signs Bill Creat­ing Public Finan­cing Program For Polit­ical Campaigns – And Will Fund It,” WAMU, March 13, 2018, https://wamu.org/story/18/03/13/bowser-signs-bill-creat­ing-public-finan­cing-program-polit­ical-campaigns-will-fund/#.XFzEYmf­sZaQ; and Rachel Chason, “Prince George’s Approves Match­ing Funds for Local Candid­ates – Start­ing in 2026,” Wash­ing­ton Post, Octo­ber 24, 2018, https://www.wash­ing­ton­post.com/local/md-polit­ics/prince-georges-approves-public-finance-system-for-local-candid­ates/2018/10/24/47f7b75a-d738–11e8-a10f-b51546b10756_story.html. The system that has been stud­ied the most is New York City’s, which has exis­ted since the 1980s and currently matches dona­tions of up to $175. foot­note22_bmtbqwr 22 New York City Campaign Finance Board, “How It Works,” last accessed March 25, 2020, https://www.nyccfb.info/program/how-it-works/; Angela Migally, Susan M. Liss, and Fred­er­ick A.O. Schwartz, Jr., Small Donor Match­ing Funds: The NYC Elec­tion Exper­i­ence, Bren­nan Center for Justice, 2010, https://www.bren­nan­cen­ter.org/public­a­tion/small-donor-match­ing-funds-nyc-elec­tion-exper­i­ence. The vast major­ity of city candid­ates parti­cip­ate. foot­note23_o4m2ym7 23 In 2017, 84 percent of candid­ates in New York City primar­ies opted to accept public funds; in 2013 it was 91 percent. New York City Campaign Finance Board, Keep­ing Demo­cracy Strong: New York City’s Campaign Finance Program in the 2017 City­wide Elec­tions, 2018, 45–46, https://www.nyccfb.info/pdf/2017_Post-Elec­tion_Report_2.pdf. Stud­ies of the 2009 and 2013 city elec­tions found that parti­cip­at­ing candid­ates took in more than 60 percent of their funds from small donors and the public match. foot­note24_1jan3s1 24 Michael Malbin, Testi­mony before the New York City Campaign Finance Board, Campaign Finance Insti­tute, Febru­ary 13, 2013, http://www.cfinst.org/Press/PReleases/14–02–13/Testi­mony_before_the_New_York_City_Campaign_Finance_Board_Says_Small_Donor_Match­ing_Funds_a_Success_but_the_City_Should_Look_at_Changes_Moving_Forward.aspx. Candid­ates who did not parti­cip­ate in the public finan­cing system raised most of their money from donors of $1,000 or more. Michael J. Malbin, Peter W. Brusoe and Brendan Glavin, What Is and What Could Be: The Poten­tial Impact of Small-Donor Match­ing Funds in New York State Elec­tions, Campaign Finance Insti­tute, 2013, 3, http://www.cfinst.org/pdf/state/NY/CFI_Impact-Match­ing-on-NYS.pdf. These donors are far more repres­ent­at­ive of the real makeup of New York than big donors in terms of race, income, educa­tion level, and geographic loca­tion. foot­note25_b0uma45 25 As New York State Senator (and former City Coun­cil Member) Jose Serrano explained: “Imagine if you could spend a little less time [making fundrais­ing calls], and a little more time in someone’s living room, listen­ing to conver­sa­tions that they have, hear­ing the ideas that they may have. You can become a much more engaged and respons­ive candid­ate and hope­fully elec­ted offi­cial.” DeNora Geta­chew and Ava Mehta, eds., Break­ing Down Barri­ers: The Faces of Small Donor Public Finan­cing, Bren­nan Center for Justice, 2016, 29, https://www.bren­nan­cen­ter.org/sites/default/files/public­a­tions/Faces_of_Public_Finan­cing.pdf. Coun­cil­mem­ber Eric Ulrich, a Queens Repub­lican, makes a similar point: “The match­ing funds program has allowed for the voice of small donors and regu­lar people to have a greater say in outcomes . . .. That has helped us trans­form how we serve our constitu­ents. I have no choice but to listen to and engage the [constitu­ents] in an over­all discus­sion about what direc­tion the city should go.” See Geta­chew and Mehta, Break­ing Down Barri­ers, 34. The compar­ison to state races that do not have small donor match­ing is notable. One study the Bren­nan Center conduc­ted found that parti­cip­at­ing city candid­ates raised money from 90 percent of the city’s census blocs, as compared to roughly 30 percent for state assembly candid­ates (who do not receive public match­ing dollars) running in the same areas. See Elisa­beth Genn, et al., Donor Diversity Through Public Match­ing Funds, Bren­nan Center for Justice and Campaign Finance Insti­tute, 2012, 4, www.bren­nan­cen­ter.org/sites/default/files/legacy/public­a­tions/Donor­Di­versi­tyRe­port_WEB.PDF. Candid­ates who parti­cip­ate in the small donor match­ing program also raise signi­fic­antly more money from donors in their own districts than other candid­ates running in the same areas. foot­note26_552bg34 26 Nirali Vyas, Chisun Lee, and Joanna Zdanys, “The Constitu­ent-Engage­ment Effect of Small Donor Public Finan­cing: A Stat­ist­ical Compar­ison of City Coun­cil (2017) and State Assembly (2018) Fundrais­ing in New York City,” Bren­nan Center for Justice, Septem­ber 9, 2019, https://www.bren­nan­cen­ter.org/our-work/research-reports/constitu­ent-engage­ment-effect-small-donor-public-finan­cing-stat­ist­ical.

Along with expand­ing the donor pool, the city’s small door match­ing system has also helped more diverse candid­ates run. These include the city’s first Black mayor and New York State’s first female and first Black elec­ted attor­ney general, who began her career on the city coun­cil. foot­note27_ymyr3mj 27 As New York State Attor­ney General Leti­tia James put it after being elec­ted New York City public advoc­ate: “The public finan­cing system in New York City gave me the oppor­tun­ity to compete and succeed, allow­ing me to repres­ent indi­vidu­als whose voices are histor­ic­ally ignored.” Geta­chew and Mehta, Break­ing Down Barri­ers, 7. See also “The Case for Public Finan­cing in New York.”

The For the People Act’s small donor match­ing provi­sions would trans­form campaign fundrais­ing in federal elec­tions. They would allow every candid­ate to power their campaign with small dona­tions; recent Bren­nan Center stud­ies of congres­sional fundrais­ing found that almost all congres­sional candid­ates would be able to raise as much as or more than they do under the current system, and that the greatest bene­fits would go to female candid­ates of color. foot­note28_6dne8u8 28 Ian Vandewalker and Kevin Morris, “The Reform Law Needed to Counter Citizens United: H.R. 1,” Bren­nan Center for Justice, Janu­ary 21, 2020, https://www.bren­nan­cen­ter.org/our-work/analysis-opin­ion/reform-law-needed-counter-citizens-united-hr-1; Chisun Li, Nirali Vyas, Gregory Clark, Small Donor Public Finan­cing Could Advance Race and Gender Equity in Congress, Bren­nan Center for Justice, Octo­ber 15, 2020, <a data-fr-linked="true" href="https://www.bren­nan­cen­ter.org/our-work/research-reports/small-donor-public-finan­cing-could-advance-race-and-gender-equity">https://www.bren­nan­cen­ter.org/our-work/research-reports/small-donor-public-finan­cing-could-advance-race-and-gender-equity</a>.

The For the People Act accom­plishes this trans­form­a­tion at no cost to taxpay­ers; the public match is instead funded primar­ily by a small surcharge on crim­inal and civil penal­ties assessed against corpor­ate wrong­do­ers. And even if this were not the case, the price tag is exceed­ingly modest — roughly 0.01 percent of the over­all federal budget over ten years. foot­note29_1oupo27 29 Fowler and Weiner, “Under­stand­ing H.R. 1,” 6. The real­ity is that campaigns cost money, which must come from some­where. When wealthy donors and special interests fund our campaigns, they expect some­thing in return. Taxpay­ers are too often the ones left to pay the real bill. foot­note30_xf4z3j0 30 As one polit­ical scient­ist recently put it: “There are no free lunches. If the public does­n’t foot the cost of polit­ical campaigns, wealthy donors and lobby­ists will. And they will get some­thing in return. And it will be far more than what they paid in. That’s how the system works. If we enact public finan­cing through a small-donor match­ing system, the public will also get some­thing in return. And it will be far more than what they paid in. That’s how the system works.” See Lee Drut­man, “Demo­crats’ Small-Donor Campaign Finance Proposal is a Great Deal for Taxpay­ers,” Vox, Janu­ary 14, 2019, https://www.vox.com/polyarchy/2019/1/14/18182579/demo­crats-hr1-donor-campaign-finance-proposal-taxpay­ers. We need a system that will create greater incent­ives to enact policies that bene­fit all Amer­ic­ans. The For the People Act’s match­ing program repres­ents the best hope for bring­ing such a change about.

In addi­tion to small donor match­ing, The For the People Act also creates a pilot program to provide eligible donors with $25 in “My Voice Vouch­ers” to give to congres­sional candid­ates of their choice in incre­ments of $5. While less common, vouch­ers are another prom­ising type of small donor public finan­cing, one that is espe­cially bene­fi­cial for Amer­ic­ans who cannot afford to make even small dona­tions. Voters in the city of Seattle over­whelm­ingly passed a voucher program in 2015, which has brought thou­sands of new donors into the polit­ical process, most of whom are women, people of color, and/or younger and less afflu­ent than the city’s over­all donor pool. foot­note31_cgjx­en5 31 Win Win Network and Every Voice Center, First Look: Seattle’s Demo­cracy Voucher Program, 2017, 2, 3–5,  https://every­voice.org/wp-content/uploads/2018/08/2017–11–15-Seattle-Post-Elec­tion-Report-FINAL.pdf.

Finally, The For the People Act revamps the pres­id­en­tial public finan­cing system, which currently provides match­ing funds to primary candid­ates and block grants to general elec­tion nomin­ees. Despite its initial success, that system ulti­mately failed because it did not afford candid­ates suffi­cient funds to compete in light of the dramatic growth in campaign costs. foot­note32_n8d4eng 32 Skaggs and Wertheimer, Empower­ing Small Donors, 11. The For the People Act addresses this prob­lem by increas­ing the primary match to a six-to-one ratio, provid­ing match­ing funds to party nomin­ees in the general elec­tion, and repeal­ing burden­some limits on how much parti­cip­at­ing candid­ates can spend.

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Shor­ing Up Other Crit­ical Campaign Finance Rules

We must also fortify other crit­ical campaign finance rules to curb dark money, counter foreign inter­fer­ence in U.S. elec­tions, and make it harder to sidestep campaign contri­bu­tion limits. These are some of the biggest chal­lenges for our campaign finance system. As recently as 2006, almost all federal campaign spend­ing was raised in accord­ance with federal contri­bu­tion limits and fully trans­par­ent. But Citizens United made it possible for new types of entit­ies to spend limit­less funds on elect­oral advocacy — includ­ing super PACs and dark money groups that are not required to publi­cize their sources of fund­ing. foot­note33_eyh4lmk 33 Daniel I. Weiner, Citizens United Five Years Later, Bren­nan Center for Justice, 2015, 7,  https://www.bren­nan­cen­ter.org/sites/default/files/analysis/Citzens_United_%20Five_Years_Later.pdf. As noted, such groups have spent billions on federal elec­tions, much of it coming from a hand­ful of billion­aire megadonors. All of this spend­ing tends to be concen­trated in the closest races. One Bren­nan Center study of the 2014 midterms showed that more than 90 percent of dark money spent on Senate races that year was concen­trated in the eleven most compet­it­ive contests. foot­note34_wsxnsmz 34 Ian Vandewalker, Elec­tion Spend­ing 2014: Outside Spend­ing in Senate Races Since Citizens United, Bren­nan Center for Justice, 2015, 4, https://www.bren­nan­cen­ter.org/sites/default/files/analysis/Outside%20Spend­ing%20Since%20Cit­izens%20United.pdf.

Dark money is an espe­cially troub­ling phenomenon. The lack of donor disclos­ure deprives voters of crit­ical inform­a­tion about who is trying to influ­ence them and what those spend­ers want from the govern­ment. It is donor disclos­ure, as the Citizens United court itself poin­ted out, that allows voters to determ­ine whether elec­ted lead­ers “are in the pocket of so-called ‘moneyed interests.’” foot­note35_aj1z­id8 35 558 U.S. at 370.

More recently, it has come to light that this lack of trans­par­ency provides multiple aven­ues for foreign govern­ments and nation­als to meddle in the Amer­ican polit­ical system. Dark money is one such avenue. For instance, as of 2020, there was an ongo­ing invest­ig­a­tion into ties between the Russian govern­ment and the National Rifle Asso­ci­ation, a 501(c)(4) organ­iz­a­tion that spent tens of millions of dollars in dark money on the 2016 pres­id­en­tial race. foot­note36_3wfm7ly 36 Joseph Biden and Michael Carpenter, “Foreign Dark Money Is Threat­en­ing Amer­ican Demo­cracy: Here’s How to Put a Stop to It,” Politico, Novem­ber 27, 2018, https://www.politico.com/magazine/story/2018/11/27/foreign-dark-money-joe-biden-222690; Tim Mak, “NRA Was ‘For­eign Asset’ To Russia Ahead of 2016, New Senate Report Reveals,” NPR, Septem­ber 27, 2019, https://www.npr.org/2019/09/27/764879242/nra-was-foreign-asset-to-russia-ahead-of-2016-new-senate-report-reveals.

Russian oper­at­ives in the 2016 elec­tion also took advant­age of weak disclos­ure rules for paid inter­net ads. Over­all, polit­ical advert­isers spent $1.4 billion online in the 2016 elec­tion, almost eight times what they spent in 2012; one projec­tion estim­ates that their spend­ing increased to $1.8 billion in the 2020 cycle. foot­note37_9yrsz46 37 Sean J. Miller, “Digital Ad Spend­ing Tops Estim­ates,” Campaigns & Elec­tions, Janu­ary 4, 2017, https://www.campaignsan­delec­tions.com/campaign-insider/digital-ad-spend­ing-tops-estim­ates; Kate Holl­i­day and Justin Lieber­man, Digital Polit­ical Advert­ising In 2020: What We Learned, Campaigns & Elec­tions, Novem­ber 30, 2020, <a href="https://www.campaignsan­delec­tions.com/campaign-insider/digital-polit­ical-advert­ising-in-2020-what-we-learned">https://www.campaignsan­delec­tions.com/campaign-insider/digital-polit­ical-advert­ising-in-2020-what-we-learned</a>. Online ads are cheap to produce and dissem­in­ate instantly to vast poten­tial audi­ences across great distances without regard for polit­ical bound­ar­ies. The Russian govern­ment’s efforts — docu­mented, among other places, in the Mueller Report — focused on stok­ing and ampli­fy­ing social discord in the U.S. elect­or­ate, lower­ing turnout (espe­cially among Black voters), and, once Donald Trump became the Repub­lican nominee, help­ing him defeat Hillary Clin­ton. foot­note38_bujosn3 38 Bren­nan Center for Justice, “The Mueller Report Exposed Weak­nesses in U.S. Demo­cratic Insti­tu­tions that H.R. 1 Would Address, 2019, https://www.bren­nan­cen­ter.org/our-work/research-reports/mueller-report-exposed-weak­nesses-us-demo­cratic-insti­tu­tions-hr-1-would; see also Nath­aniel Persily, “Can Demo­cracy Survive the Inter­net?” Journal of Demo­cracy 28 (2017): 72. Moscow’s efforts in 2016 may serve as a blue­print for other malefact­ors. As former Home­land Secur­ity Secret­ary Jeh John­son put it, “The Russi­ans will be back, and possibly other state actors, and possibly other bad cyber actors.” foot­note39_yzwh9ad 39 Andrew Rafferty, “Former DHS Chief Warns Russi­ans Will Continue to Target U.S. Elec­tions,” NBC News, June 21, 2017, https://www.nbcnews.com/polit­ics/polit­ics-news/former-dhs-chief-warns-russi­ans-will-continue-target-u-s-n775116. Indeed, disin­form­a­tion campaigns sponsored by the Russian, Chinese, and other foreign govern­ments appear to have been wide­spread in 2020 and will likely be a feature of our elec­tions for the fore­see­able future. foot­note40_z1x87oq 40 Mark Scott, Russia Is Back, Wilier Than Ever — And It’s Not Alone,” Politico, Septem­ber 14, 2020, <a data-fr-linked="true" href="https://www.politico.com/news/2020/09/14/russia-cyber­at­tacks-elec­tion-413757">https://www.politico.com/news/2020/09/14/russia-cyber­at­tacks-elec­tion-413757</a>.

Beyond ques­tions of trans­par­ency, there is also the prob­lem of candid­ates work­ing closely with outside spend­ers, includ­ing both super PACs and dark money groups, to circum­vent contri­bu­tion limits. The Citizens United Court wrongly assumed this would not happen. It was the very “absence of prearrange­ment and coordin­a­tion” that the Court thought would make outside spend­ing not partic­u­larly valu­able to candid­ates, and thus not a signi­fic­ant corrup­tion risk. That is why, unlike direct contri­bu­tions to candid­ates, outside spend­ing cannot be limited. But even if one accepts the Court’s flawed reas­on­ing, the real­ity is that a great deal of outside spend­ing is anything but inde­pend­ent. In 2016, for example, most pres­id­en­tial candid­ates had personal super PACs run by top aides or other close asso­ci­ates, whose only purpose was to get the candid­ate elec­ted and for which the candid­ate often person­ally raised funds or even appeared in ads. These entit­ies are also becom­ing increas­ingly common in Senate and House races; the trend contin­ued in 2020. foot­note41_b6ascln 41 Brent Ferguson, Candid­ates & Super PACs: The New Model in 2016, Bren­nan Center for Justice, 2015, 3, https://www.bren­nan­cen­ter.org/public­a­tion/candid­ates-super-pacs-new-model-2016; Soo Rin Kim, “Mine, All Mine: Single Candid­ate Super PACs, Creep­ing Down-Ballot,” Center for Respons­ive Polit­ics, Novem­ber 10, 2016, https://www.open­secrets.org/news/2016/11/mine-all-mine-single-candid­ate-super-pacs-creep­ing-down-ballot/; Kevin Robil­lard, “How Super PACs Took Over The 2020 Demo­cratic Primary,” Huff­ing­ton Post, Febru­ary 20, 2020, <a href="https://www.huff­post.com/entry/super-pacs-took-over-2020-demo­cratic-primary_n_5e4e­fc9fc5b6b82aa65044b7?guccounter=1&guce_refer­rer=aHR0cH­M6Ly93d3cuZ29vZ2xlLmN­vbS8&guce_refer­rer_sig=AQAAAIn­MoY­Wn0tHp­m­cK­q1UNiG0suoDzT­pc­SUUEvCx­oKXB­Wr­GB­Vk­DSfk­cLT­fMAV40t6g1koZ4ZfFMjtxzy8dY1qJ47_f1CjOokA7l­mox­Iozr_nAyG­Zaa­jai1Y55vvA­Jm­rAG­p­G2kJ8_G7wel8q­FA6ZxUg48HR5S­g0ni­INd­jk­Vor­ToB­wnxN">https://www.huff­post.com/entry/super-pacs-took-over-2020-demo­cratic-primary_n_5e4e­fc9fc5b6b82aa65044b7?guccounter=1&amp;guce_refer­rer=aHR0cH­M6Ly93d3cuZ29vZ2xlLmN­vbS8&amp;guce_refer­rer_sig=AQAAAIn­MoY­Wn0tHp­m­cK­q1UNiG0suoDzT­pc­SUUEvCx­oKXB­Wr­GB­Vk­DSfk­cLT­fMAV40t6g1koZ4ZfFMjtxzy8dY1qJ47_f1CjOokA7l­mox­Iozr_nAyG­Zaa­jai1Y55vvA­Jm­rAG­p­G2kJ8_G7wel8q­FA6ZxUg48HR5S­g0ni­INd­jk­Vor­ToB­wnxN</a>; and Center for Respons­ive Polit­ics, “2020 Outside Spend­ing by Single-Candid­ate Super PACs,” accessed Janu­ary 29, 2021, <a href="https://www.open­secrets.org/outsides­pend­ing/summ.php?chrt=V&type=C">https://www.open­secrets.org/outsides­pend­ing/summ.php?chrt=V&amp;type=C</a>. All of these factors have rendered campaign contri­bu­tion limits virtu­ally mean­ing­less.

The For the People Act takes several key steps to deal with these prob­lems. First, it closes legal loop­holes that have allowed dark money to prolif­er­ate by requir­ing all groups that spend signi­fic­ant sums on campaigns to disclose the donors who pay for that spend­ing. Second, it expands trans­par­ency require­ments to apply to online campaign ads on the same terms as those run on more tradi­tional media. It also strengthens the “paid for” disclaim­ers that are required to be included in such ads. And it requires the largest online plat­forms, with over 50 million unique visit­ors per month, to estab­lish a public file of requests to purchase polit­ical ads akin to the file broad­casters have long been required to main­tain. foot­note42_e5nuhww 42 See 47 C.F.R. 73.3526(e)(6), 73.3527(e)(5). Finally, it tight­ens restric­tions on coordin­a­tion between candid­ates and all outside groups that can raise unlim­ited funds. These are valu­able reforms that, like small donor public finan­cing, will help blunt the worst effects of Citizens United and bring greater account­ab­il­ity to our campaigns.

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Over­haul the FEC

A third import­ant prior­ity is to over­haul the dysfunc­tional Federal Elec­tion Commis­sion (“FEC”), which has failed to mean­ing­fully enforce exist­ing rules and would almost certainly struggle to imple­ment other ambi­tious reforms.

The FEC’s struc­ture dates back to the 1970s and was designed to prevent the agency from taking any decis­ive action without bipar­tisan agree­ment among its commis­sion­ers. No more than three of its six members can be affil­i­ated with any one party, and at least 4 votes are required to enact regu­la­tions, issue guid­ance, or even invest­ig­ate alleged viol­a­tions of the law. By long­stand­ing tradi­tion, each of the two major parties takes half the FEC’s seats. foot­note43_fht3zf5 43 Daniel I. Weiner, Fixing the FEC: An Agenda for Reform, Bren­nan Center for Justice, 2019,  https://www.bren­nan­cen­ter.org/sites/default/files/public­a­tions/2019_04_FECV_Final.pdf For much of 2019 and 2020, the Commis­sion did not even have a quorum of commis­sion­ers, because only 3 of its 6 seats were occu­pied. foot­note44_x0fk­tpp 44 Brian Naylor, “The Federal Elec­tion Commis­sion Can Finally Meet Again. And It Has A Big Back­log,” NPR, Decem­ber 24, 2020, <a href="https://www.npr.org/2020/12/24/949672803/the-federal-elec­tion-commis­sion-can-finally-meet-again-and-it-has-a-big-back­log">https://www.npr.org/2020/12/24/949672803/the-federal-elec­tion-commis­sion-can-finally-meet-again-and-it-has-a-big-back­log</a>.

The FEC’s design dates back to a time when disagree­ments over the govern­ment’s role in regu­lat­ing money in polit­ics did not neces­sar­ily track­with partisan affil­i­ation. Ordin­ary Amer­ic­ans of all polit­ical stripes still over­whelm­ingly support strong campaign finance laws, but party elites are now sharply divided, which has left the commis­sion mired in grid­lock. foot­note45_qf9wh3c 45 Weiner, Fixing the FEC, 4. Even before it lost its quorum, the commis­sion routinely dead­locked along party lines over whether to pursue signi­fic­ant campaign finance viol­a­tions — often after sitting on alleg­a­tions for years without even invest­ig­at­ing them. Its process for issu­ing new regu­la­tions had also virtu­ally ground to a halt. Commis­sion­ers were increas­ingly unable to agree even on how to answer requests for interim guid­ance received through the commis­sion’s advis­ory opin­ion process, leav­ing candid­ates, parties, and others to decipher the law for them­selves without assist­ance. foot­note46_m53thr6 46 See 52 U.S.C. §§ 30107(a)(7), 30108. Dead­locks on advis­ory opin­ion requests have increased expo­nen­tially. Weiner, Fixing the FEC, 3–5.

FEC dysfunc­tion has played a crit­ical role in the creation of many of our polit­ical system’s worst prob­lems, includ­ing dark money, rampant collab­or­a­tion between candid­ates and supposedly inde­pend­ent outside groups, and many of the gaps in the law that increase our vulner­ab­il­ity to foreign inter­fer­ence in our campaigns. foot­note47_5frii91 47 Weiner, Fixing the FEC, 1. As a bipar­tisan group of lawmakers wrote Pres­id­ent Trump in 2018, a dysfunc­tional FEC “hurts honest candid­ates who are trying to follow the letter of the law and robs the Amer­ican people of an elect­oral process with integ­rity.” foot­note48_j9ciruo 48 Office of Rep. Derek Kilmer, “Kilmer, Buck Lead Bipar­tisan Call to Pres­id­ent Trump: Fill Vacant Seats on Federal Elec­tion Commis­sion Imme­di­ately,” Febru­ary 14, 2018, https://kilmer.house.gov/news/press-releases/kilmer-buck-lead-bipar­tisan-call-to-pres­id­ent-trump-fill-vacant-seats-on-federal-elec­tion-commis­sion-imme­di­ately. If not addressed, the commis­sion’s prob­lems could stymie imple­ment­a­tion of the other ambi­tious reforms in the For the People Act. Moreover, the agency’s inab­il­ity to enforce campaign finance laws contrib­utes to a broader culture of impun­ity at a time of erod­ing respect for the rule of law and demo­cratic values more gener­ally. foot­note49_k5nr2df 49 Preet Bhar­ara, Christine Todd Whit­man, et al., Propos­als for Reform, National Task Force on Rule of Law and Demo­cracy, 2018, 16,  https://www.bren­nan­cen­ter.org/sites/default/files/public­a­tions/TaskFor­ceRe­port_2018_09_.pdf.

The For the People Act addresses the main flaws of the FEC through several targeted changes. It curtails grid­lock by redu­cing the number of commis­sion­ers from six to five, with no more than two affil­i­ated with any party — effect­ively requir­ing one commis­sioner to be a tie-break­ing inde­pend­ent. It also provides the Commis­sion with a real, pres­id­en­tially-appoin­ted chair­per­son foot­note50_rjcinoq 50 Currently the office rotates annu­ally and is largely symbolic See 52 U.S.C. § 30106(a)(5). to serve as its chief admin­is­trat­ive officer. And it ends the prac­tice of allow­ing commis­sion­ers to remain in office indef­in­itely past the expir­a­tion of their terms, which has given Congress and the pres­id­ent an excuse to avoid appoint­ing new members, likely contrib­ut­ing to the agency’s recent loss of its quorum. foot­note51_kyql209 51 The commis­sioner who depar­ted had served for more than five years past the expir­a­tion of his term. Dave Levinthal, “FEC Commis­sion­ers’ Terms Expired Long Ago, but Trump, Congress Won’t Replace Them,” NBC News, April 30, 2018, https://www.nbcnews.com/polit­ics/elec­tions/fec-commis­sion­ers-terms-expired-long-ago-trump-congress-won-t-n870071. Finally, the For the People Act stream­lines the commis­sion’s enforce­ment process by giving its nonpar­tisan staff author­ity to invest­ig­ate alleged campaign finance viol­a­tions and dismiss frivol­ous complaints. foot­note52_opqx57a 52 Under the commis­sion’s present struc­ture, even those wrong­fully accused of viol­a­tions must some­times wait years for their names to be cleared. Weiner, Fixing the FEC, 4.

All of these changes are designed to bring the FEC’s struc­ture more in line with that of other import­ant federal regu­lat­ors. Crit­ic­ally, however, the For the People Act also contains strong safe­guards to protect a revital­ized FEC from becom­ing a tool for partisan over­reach.

For instance, the For the People Act seeks to ensure partisan balance on the new FEC by provid­ing that nomin­ees to seats on the commis­sion are considered to be affil­i­ated with a party if they have had any connec­tion to the party — includ­ing as a registered voter, employee, consult­ant, or attor­ney within the previ­ous five years. That will minim­ize the risk of the Senate confirm­ing a “wolf in sheep’s cloth­ing” — i.e. someone trying to disguise their true partisan lean­ings. foot­note53_b8jb­s8n 53 See Daniel Weiner, “FEC’s Status Quo is Hazard­ous – Proposed Legis­la­tion Would Help Fix It,” The Hill, Febru­ary 10, 2019, https://thehill.com/opin­ion/campaign/429294-fecs-status-quo-is-hazard­ous-proposed-legis­lature-would-help-fix-it. It also creates a new, bipar­tisan vetting process for nomin­ees. And it provides for more robust judi­cial over­sight of the enforce­ment process. Ending the abil­ity of commis­sion­ers to remain indef­in­itely past the expir­a­tion of their terms will also be a safe­guard against excess­ive partis­an­ship, since hold­over commis­sion­ers are more subject to pres­sure from the pres­id­ent and Congress, who have the power to replace them at any time. foot­note54_ti6an7d 54 Weiner, Fixing the FEC.

These meas­ures provide signi­fic­antly more formal protec­tion than exists under current law. They are part of an over­all pack­age of sens­ible reforms that would help ensure that the campaign finance laws we have on the books will be fairly and effect­ively enforced.

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End Notes

Redistricting Reform

Extreme partisan gerry­man­der­ing is another threat to our demo­cracy’s long-term health. Congress should outlaw partisan gerry­man­der­ing and estab­lish clear, uniform rules for draw­ing lines. It should also make the redis­trict­ing process more trans­par­ent and parti­cip­at­ory.

The need for redis­trict­ing reform is urgent. Extreme gerry­man­der­ing has reached levels unseen in the last 50 years. foot­note1_s7jlpe5 1 Laura Royden and Michael Li, Extreme Maps, Bren­nan Center for Justice, 2017, 6–13, https://www.bren­nan­cen­ter.org/sites/default/files/public­a­tions/Extreme%20Maps%205.16.pdf. As a result, shifts in polit­ical currents have had virtu­ally no elect­oral impact in the most heav­ily gerry­mandered states. For example, in 2018, for example, a polit­ical tsunami year for Demo­crats — no districts changed parties in Ohio and North Caro­lina, two states with extremely biased maps. Despite the fact that Demo­crats earned nearly half the vote in both states, they won only a quarter of the seats. The over­whelm­ing major­ity of the seats that did change parties in 2018 — 72 percent — were drawn by commis­sions and courts instead of partisan legis­latures.  foot­note2_jw0i50t 2 Annie Lo, “How Did Demo­crats Flip the House? Fairer Maps,” Bren­nan Center for Justice, Dec. 7, 2018, https://www.bren­nan­cen­ter.org/blog/how-did-demo­crats-flip-house-fairer-maps. A Demo­cratic gerry­mander in Mary­land was proven to be just as unbreak­able. foot­note3_7e5z3y0 3 Benisek v. Lamone, __ F. Supp. 3d __ (2018). Redis­trict­ing abuse is a bipar­tisan prob­lem — both parties will draw districts that serve their partisan ends if given the oppor­tun­ity.

The upcom­ing cycle of redis­trict­ing looks even more omin­ous. Though the land­scape has improved since 2011 in some states, single-party control remains the real­ity for the upcom­ing cycle of redis­trict­ing for most of the coun­try. foot­note4_6ixbuhz 4 Michael Li, The Redis­trict­ing Land­scape, 2021–22, Bren­nan Center for Justice, Febru­ary 11, 2021, https://www.bren­nan­cen­ter.org/our-work/research-reports/redis­trict­ing-land­scape-2021–22.  And the Supreme Court’s 2019 ruling that partisan gerry­man­der­ing does not viol­ate the Consti­tu­tion means that would-be gerry­man­der­ers now have license to use new mapping tech­no­logy and power­ful analyt­ics about voters to create even more durable and perni­cious gerry­manders.

Too often, communit­ies of color bear the brunt of these efforts. When Repub­lican-drawn maps in North Caro­lina, Texas, and Virginia were success­fully chal­lenged on the grounds that they discrim­in­ated against minor­ity voters, Repub­lic­ans defen­ded the maps by arguing that polit­ics, rather than race, had been the driv­ing force behind their maps. Like­wise, Demo­crats in Mary­land rejec­ted a congres­sional map that would have given Black people addi­tional elect­oral oppor­tun­it­ies because that would have created an addi­tional Repub­lican seat. foot­note5_558sngr 5 Guy-Uriel E. Charles and Luis Fuentes-Rohwer, “Race and Repres­ent­a­tion Revis­ited: The New Racial Gerry­man­der­ing Cases and Section 2 of the VRA,” William and Mary LawReview 59, no. 5 (2018): 1559–1600; Aaron C. Davis, “Redis­trict­ing in Md. Has Element of Racial Fric­tion,” Wash­ing­ton Post, July 24, 2011, https://www.wash­ing­ton­post.com/local/dc-polit­ics/redis­trict­ing-in-md-has-element-of-racial-fric­tion/2011/07/23/gIQAU86MXI_story.html?utm_term=.b84f2191878d. Without a rule that makes disad­vantaging voters of color for partisan gain illegal, this type of discrim­in­a­tion will continue and grow.

The For the People Act offers bold and compre­hens­ive solu­tions to the prob­lem of gerry­man­der­ing. It expressly outlaws partisan gerry­man­der­ing and imposes a uniform set of rules for how districts should be drawn, includ­ing requir­ing states to prior­it­ize protec­tions for communit­ies of color and keep­ing geograph­ic­ally concen­trated communit­ies with shared interests (often referred to as “communit­ies of interest”) together. It also requires states to use inde­pend­ent redis­trict­ing commis­sions to draw congres­sional maps. foot­note6_1628dgo 6 Shared interests that can merit collect­ive repres­ent­a­tion can be social, cultural, ethnic, economic, reli­gious, or polit­ical. Communit­ies of interest are complex, but they are a crucial part of our social fabric, and H.R. 1 recog­nizes their import­ance by prior­it­iz­ing their cohe­sion. See Justin Levitt and Erika Wood, A Citizen’s Guide to Redis­trict­ing, Bren­nan Center for Justice, 2010,  https://www.bren­nan­cen­ter.org/sites/default/files/analysis/a-citizens-guide-to-redis­trict­ing.pdf. Depend­ing on when the For the People Act is passed these reforms could be phased in, with the ban on partisan gerry­man­der­ing and require­ment for uniform map-draw­ing rules becom­ing effect­ive imme­di­ately. In this case, the inde­pend­ent commis­sion require­ment would take effect later if there is not enough time to set commis­sions up for the next round of redis­trict­ing ahead of the 2022 mid-term elec­tions.

The exper­i­ence of states like Arizona and Cali­for­nia shows that reforms work. Cali­for­nia went from having a congres­sional map that was one of the least respons­ive to shifts in voter opin­ion to one of the most. And Cali­for­ni­a’s maps did not just improve polit­ical fair­ness they also kept communit­ies of interest together, increased repres­ent­a­tion for communit­ies of color, and expan­ded oppor­tun­it­ies for compet­i­tion. foot­note7_nbg5efr 7 Royden and Li¸ Extreme Maps, 23, 26, 29; Laura Royden, Michael Li, and Yurij Rudensky, Extreme Gerry­man­der­ing & the 2018 Midterm, Bren­nan Center for Justice, 2018, 17–19, https://www.bren­nan­cen­ter.org/sites/default/files/public­a­tions/Extreme%20Ger­ry­man­der­ing%204.24.18.pdf.

It is little wonder that these reforms are popu­lar among voters. In 2018, a record-high number of states passed redis­trict­ing reform for congres­sional and/or legis­lat­ive districts. In Ohio, one proposal carried every single congres­sional district in the state by a super­ma­jor­ity. Reforms in Color­ado and Michigan also passed over­whelm­ingly, with more than 60 percent of the vote statewide. foot­note8_7ltn­pc0 8 Peter Miller and Annie Lo, “Support for Ohio’s Issue 1 Ballot Meas­ure in the 2018 Primary Elec­tion,” Bren­nan Center for Justice, Novem­ber 7, 2018, https://www.bren­nan­cen­ter.org/blog/support-ohio-issue-1-ballot-meas­ure-2018-primary-elec­tion; Peter Miller and Brianna Cea, “Every­body Loves Redis­trict­ing Reform,” Bren­nan Center for Justice, Decem­ber 5, 2018, https://www.bren­nan­cen­ter.org/blog/every­body-loves-redis­trict­ing-reform.  In 2020, two-thirds of Virginia voters passed a redis­trict­ing reform initi­at­ive to create a bipar­tisan commis­sion composed of lawmakers and citizens. foot­note9_59migr9 9 The Virginia Public Access Project, “Elec­tion Results: Novem­ber 3, 2020,” accessed Janu­ary 29, 2021, https://www.vpap.org/elec­tion­res­ults/20201103/refer­enda/.

The For the People Act builds on what has been proven to work. Commis­sions would contain equal numbers of Repub­lican, Demo­cratic, and unaf­fili­ated and third party commis­sion­ers, with voting rules that ensure that no one group would be able to domin­ate or hijack the redis­trict­ing process. Addi­tion­ally, all poten­tial commis­sion­ers would be subject to a thor­ough vetting process to ensure that they have the requis­ite qual­i­fic­a­tions and community know­ledge and are free from conflicts of interest to ensure that they do not have a personal stake in the outcome.

The Act’s estab­lish­ment of a clear set of map-draw­ing rules, listed in the order in which they are to be applied, is another import­ant and ground­break­ing change. foot­note10_q7jm­lyr 10 The criteria are based on best prac­tices as developed by a number of civil rights and good govern­ment groups that study redis­trict­ing. See Common Cause, “Redis­trict­ing Prin­ciples for a More Perfect Union,” accessed March 25, 2020, https://www.common­cause.org/redis­trict­ing-prin­ciples-for-a-more-perfect-union/#. Federal law currently has next to no rules govern­ing how districts should be drawn. foot­note11_5cas5pk 11 There are no specific federal redis­trict­ing regu­la­tions beyond the require­ment that districts be single member and equally popu­lated. For racial and language minor­it­ies, there are also protec­tions avail­able under the Equal Protec­tion Clause and the Voting Rights Act. Like­wise, most states (with a hand­ful of excep­tions) have few guidelines govern­ing congres­sional redis­trict­ing. This has allowed abuses to run rampant. The Act’s ban on partisan gerry­man­der­ing and enhanced protec­tions for communit­ies of color and communit­ies of interest directly address the most egre­gious of these abuses of the past decade, like the inten­tional dilu­tion of polit­ical power of communit­ies of color mentioned earlier.

Finally, the For the People Act trans­forms what has histor­ic­ally been an opaque process into one that is trans­par­ent and parti­cip­at­ory. The busi­ness of mapdraw­ing would be conduc­ted in open public meet­ings and subject to over­sight. Data would be made avail­able and all offi­cial commu­nic­a­tions would be subject to disclos­ure. Community groups and every­day citizens would get a say a chance to review and comment on proposed maps and submit their own altern­at­ives. States would be required to show their work and issue a detailed report before taking a final vote on a plan. In short, redis­trict­ing would no longer be done through back­room deals.

Congress has the author­ity to fix congres­sional redis­trict­ing. foot­note12_5tza­cf7 12 Arizona v. Inter­tribal Coun­cil of Arizona, Inc., 570 U.S. 1 (2013). As the Supreme Court recog­nized in 2019, “The Framers provided a remedy [in the Consti­tu­tion for redis­trict­ing abuses through the] power bestowed on Congress to regu­late elec­tions, and . . . to restrain the prac­tice of polit­ical gerry­man­der­ing.” foot­note13_dbd41dy 13 Vieth v. Jube­lirer, 541 U.S. 267 (2004). Over the years, Congress has repeatedly exer­cised its power under Article I, Section 4 to do just that. foot­note14_pbrg6f1 14 55 Stat. 761 (1941), 2 U.S.C. §2a (Supp. 1950); 54 Stat. 162 (1940); 46 Stat. 21 (1929); 37 Stat. 13 (1911); 31 Stat. 733 (1901); 26 Stat. 735 (1891); 22 Stat. 5 (1882); 17 Stat. 28 (1872); 12 Stat. 353 (1862); 10 Stat. 25 (1852); 9 Stat. 432(1850); 5 Stat. 491 (1842); 4 Stat. 516 (1832); 3 Stat. 651 (1822); 2 Stat. 669 (1811); 2 Stat. 128 (1802); 1 Stat. 253 (1792). In 1967, for example, Congress required all states to use single member congres­sional districts to end the draw­ing of racially discrim­in­at­ory multimem­ber districts, a prac­tice adop­ted to defy the call of the Voting Rights Act. See 2 U.S.C. § 2c

The changes in the For the People Act will dramat­ic­ally improve congres­sional repres­ent­a­tion for all Amer­ic­ans, combin­ing best prac­tices to ensure fair, effect­ive, and account­able repres­ent­a­tion. Congress plainly has the power to enact these changes and should do so without delay.

End Notes

Election Security

We must also take crit­ical steps to improve the secur­ity and reli­ab­il­ity of our elec­tion infra­struc­ture.

The 2016 elec­tion put a spot­light on elec­tion infra­struc­ture secur­ity, after foreign adversar­ies and cyber­crim­in­als success­fully breached state voter regis­tra­tion systems and elec­tion night results report­ing websites. foot­note1_4nucbwb 1 Rick Pear­son, “State Offi­cials Say Russian Hack­ers Stole 76k Illinois Voters’ Info in 2016, not 500K,” Chicago Tribune, August 8, 2018, https://www.chica­g­o­tribune.com/news/local/polit­ics/ct-met-illinois-elec­tions-board-russia-2016-elec­tion-hack­ing-20180808-story.html; Tyler Whet­stone, “Knox County elec­tion night cyber­at­tack was smokescreen for another attack,” Knox News, May 17, 2018, https://www.knoxnews.com/story/news/local/2018/05/17/knox-county-elec­tion-cyber­at­tack-smokescreen-another-attack/620921002/.  While there do not appear to have been similar attacks against our elec­tion infra­struc­ture in 2020, foreign adversar­ies continue to demon­strate an interest in elec­tion inter­fer­ence, and recent hacks into soft­ware used through­out the federal govern­ment show that such attacks are grow­ing increas­ingly soph­ist­ic­ated. foot­note2_zxxwpaq 2 Julian E. Barnes and David E. Sanger, “Iran and Russia Seek to Influ­ence Elec­tion in Final Days, U.S. Offi­cials Warn,” New York Times, Octo­ber 21, 2020, https://www.nytimes.com/2020/10/21/us/polit­ics/iran-russia-elec­tion-inter­fer­ence.html; David E. Sanger, Nicole Perl­roth and Eric Schmitt, “Scope of Russian Hack­ing Becomes Clear: Multiple U.S. Agen­cies Were Hit,” New York Times, Janu­ary 5, 2021, https://www.nytimes.com/2020/12/14/us/polit­ics/russia-hack-nsa-home­land-secur­ity-pentagon.html.

Despite these clear threats, six states continue to use voting machines that have no paper backup; secur­ity experts have consist­ently argued that paper ballots are is a minimum defense neces­sary to detect and recover from cyber­at­tacks and tech­nical fail­ures in voting machines. foot­note3_zbiuqiu 3 See “The Veri­fier — Polling Place Equip­ment — Novem­ber 2020,” Veri­fied Voting, accessed Janu­ary 28, 2021, htps://www.veri­fied­vot­ing.org/veri­fier/; Lawrence Norden and Chris­topher Famighetti, Amer­ica’s Voting Machines at Risk, Bren­nan Center for Justice, 2015, https://www.bren­nan­cen­ter.org/sites/default/files/public­a­tions/Amer­icas_Voting_Machines_At_Risk.pdf; Secur­ing the Vote: Protect­ing Amer­ican Demo­cracy, The National Academies of Sciences, Engin­eer­ing, and Medi­cine, 2018, https://www.nap.edu/read/25120/chapter/1. Of the states that do use paper ballots, too few conduct suffi­cient reviews of their paper backups to audit their elec­tion results; private voting system vendors are not required to report secur­ity breaches, which often leaves our elec­tion admin­is­trat­ors and the public in the dark; and elec­tion offi­cials across the coun­try say they lack the resources to imple­ment crit­ical elec­tion secur­ity meas­ures. foot­note4_6mt1ofz 4 Córdova McCad­ney et al., “Voting Machine Secur­ity;” Lawrence Norden, Aaron Burstein, Joseph Lorenzo Hall, and Margaret Chen, Post-Elec­tion Audits: Restor­ing Trust in Elec­tions, Bren­nan Center for Justice and Samuel­son Law, Tech­no­logy & Public Policy Clinic, 2007, https://www.bren­nan­cen­ter.org/public­a­tion/post-elec­tion-audits-restor­ing-trust-elec­tions; Lawrence Norden, Gowri Ramachandran, and Chris­topher Deluzio, “A Frame­work for Elec­tion Vendor Over­sight,” Bren­nan Center for Justice, Novem­ber 12, 2019, https://www.bren­nan­cen­ter.org/our-work/policy-solu­tions/frame­work-elec­tion-vendor-over­sight; Nicole Perl­roth, Michael Wines and Matthew Rosen­berg, “Russian Elec­tion Hack­ing Efforts, Wider Than Previ­ously Known, Draw Little Scru­tiny,” New York Times, Septem­ber 1, 2017, https://www.nytimes.com/2017/09/01/us/polit­ics/russia-elec­tion-hack­ing.html; Norden and Famighetti, Amer­ica’s Voting Machines; Lawrence Norden and Wilfred U. Codring­ton III, “Amer­ica’s Voting Machines at Risk – An Update,” Bren­nan Center for Justice, March 8, 2018, https://www.bren­nan­cen­ter.org/analysis/amer­icas-voting-machines-risk-an-update; Córdova McCad­ney et al., “Voting Machine Secur­ity.” Unfor­tu­nately, our elec­tion secur­ity is only as strong as our weak­est link.

The For the People Act signi­fic­antly bolsters the secur­ity and resi­li­ence of our nation’s elec­tion admin­is­tra­tion infra­struc­ture. Among the most crit­ical reforms, it requires states to replace unse­cure paper­less voting systems, promotes robust audits of elec­tronic elec­tion results, and imposes new require­ments for private elec­tion system vendors.


Repla­cing Paper­less Voting Systems

First and fore­most, the For the People Act mandates the replace­ment of all paper­less elec­tronic voting machines with machines that require an indi­vidual paper record of each vote. Top secur­ity experts—­from the National Academies of Sciences, Engin­eer­ing and Medi­cine, the national intel­li­gence community, academia and industry—agree that repla­cing paper­less voting systems is a top prior­ity. This step is crit­ical to improv­ing elec­tion secur­ity because, as the National Academies put it, “Paper ballots form a body of evid­ence that is not subject to manip­u­la­tion by faulty soft­ware or hard­ware and…can be used to audit and verify the results of an elec­tion.” foot­note5_ozbt­fux 5 Secur­ing the Vote: Protect­ing Amer­ican Demo­cracy, 5; Lawrence Norden, The Machinery of Demo­cracy: Protect­ing Elec­tions In An Elec­tronic World, Bren­nan Center for Justice, 2006, https://www.bren­nan­cen­ter.org/public­a­tion/machinery-demo­cracy-protect­ing-elec­tions-elec­tronic-world-0; Russian Target­ing of Elec­tion Infra­struc­ture During the 2016 Elec­tion: Summary of Initial Find­ings and Recom­mend­a­tions, U.S. Senate Select Commit­tee on Intel­li­gence, 2018 https://www.burr.senate.gov/imo/media/doc/One-Pager%20Recs%20FI­NAL%20VER­SION%203–20.pdf; Olivia Beavers, “DHS Chief Calls on Offi­cials in all 50 States to Have 'Veri­fi­able’ Ballots by 2020 Elec­tion,” The Hill, Aug. 22, 2018, https://thehill.com/policy/cyber­se­cur­ity/403148-dhs-chief-calls-on-elec­tion-offi­cials-in-all-50-states-to-have; see also Norden and Famighetti, Amer­ica’s Voting Machines at Risk.  Without that record and check, soft­ware manip­u­la­tion or a bug could change an elec­tion result without detec­tion. Further, as Virginia showed in 2017 when it was forced to replace paper­less systems just months before a high-profile gubernat­orial elec­tion after learn­ing of seri­ous secur­ity vulner­ab­il­it­ies in its systems, this trans­ition can easily be accom­plished in the time­frame provided in this Act. foot­note6_xfhw5x9 6 Laura Vozzella, “Virginia Scraps Touch-screen Voting as Elec­tion for Governor Looms,” Wash­ing­ton Post, Sept. 8, 2017, https://www.wash­ing­ton­post.com/local/virginia-polit­ics/virginia-scraps-touch-screen-voting-machines-as-elec­tion-for-governor-looms/2

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Promot­ing Robust Audits of Elec­tion Results

The For the People Act also provides funds for states to imple­ment robust audits of elec­tion results using stat­ist­ical models to ensure that a suffi­cient number of paper ballots are checked to corrob­or­ate the elec­tronic vote tallies (known as “risk-limit­ing audits”). foot­note7_xmfic42 7 Mark Linde­man and Philip B. Stark, “A Gentle Intro­duc­tion to Risk-Limit­ing Audits,” IEEE Secur­ity and Privacy, Special Issue on Elec­tronic Voting (2012): 1,  https://www.stat.berke­ley.edu/~stark/Preprints/gentle12.pdf. While paper records will not prevent program­ming errors, soft­ware bugs, or the inser­tion of corrupt soft­ware into voting systems, risk-limit­ing audits use these paper records to detect and correct any elec­tion outcomes impacted by such abnor­mal­it­ies. These audits are quickly grow­ing in popular­ity. Twelve states now require risk-limit­ing audits or piloted the use of these audits in the 2020 elec­tion, and elec­tion offi­cials in over a dozen juris­dic­tions across the coun­try have either piloted them in the last year or will do so in 2019. foot­note8_5zosuh9 8 “Risk-Limit­ing Audits,” National Confer­ence of State Legis­latures, Feb. 17, 2020, <a href="https://www.ncsl.org/research/elec­tions-and-campaigns/risk-limit­ing-audits.aspx">https://www.ncsl.org/research/elec­tions-and-campaigns/risk-limit­ing-audits.aspx</a>.

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Regu­lat­ing Elec­tion System Vendors

The For the People Act provides for greater federal over­sight of the private vendors who design and main­tain the elec­tion systems that store our personal inform­a­tion, tabu­late our votes, and commu­nic­ate import­ant elec­tion inform­a­tion to the public. The Bren­nan Center has docu­mented numer­ous instances of voting system fail­ures that could have been preven­ted had vendors noti­fied their clients of previ­ous fail­ures in other juris­dic­tions using the same voting equip­ment. foot­note9_9cm3150 9 Norden et al., “Elec­tion Vendor Over­sight.” Among other things, any vendors who receive grants under the Act would be required to (1) certify that the infra­struc­ture they sell to local elec­tion juris­dic­tions is developed and main­tained in accord­ance with cyber­se­cur­ity best prac­tices; (2) verify that their own inform­a­tion tech­no­logy is main­tained in accord­ance with cyber­se­cur­ity best prac­tices; and (3) promptly report any suspec­ted cyber­se­cur­ity incid­ent direc­ted against the goods and services they provide under these grants.

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End Notes

Ethics

Finally, we must estab­lish stronger ethics rules for all three branches of govern­ment. These provi­sions would be an essen­tial first step towards shor­ing up erod­ing constraints on self-deal­ing at the highest levels of govern­ment. foot­note1_ef0r­fz7 1 Bhar­ara et al., Propos­als for Reform, 2; Johanna Kalb and Alicia Bannon, Supreme Court Ethics Reform, Bren­nan Center for Justice, 2019, https://www.bren­nan­cen­ter.org/our-work/research-reports/supreme-court-ethics-reform; Daniel I. Weiner, Strength­en­ing Pres­id­en­tial Ethics Law, Bren­nan Center for Justice, 2017,  https://www.bren­nan­cen­ter.org/our-work/policy-solu­tions/strength­en­ing-pres­id­en­tial-ethics-law; and Aaron D. Hill, Jason W. Ridge, and Amy Ingram, “The Grow­ing Conflict-of-Interest Prob­lem in the U.S. Congress,” Harvard Busi­ness Review, Febru­ary 24, 2017, https://hbr.org/2017/02/the-grow­ing-conflict-of-interest-prob­lem-in-the-u-s-congress. The For the People Act addresses this chal­lenge. Among the most import­ant changes, it:

  • requires the pres­id­ent and vice pres­id­ent to adhere to the same broad ethical stand­ards as the millions of govern­ment employ­ees who work under them, consist­ent with volun­tary prac­tices to which every pres­id­ent going back to the 1960s adhered until Pres­id­ent Trump took office;
  • requires the pres­id­ent, vice pres­id­ent, and candid­ates for those offices to disclose their tax returns, also consist­ent with long­stand­ing volun­tary norms;
  • strengthens the Office of Govern­ment Ethics, which over­sees ethical compli­ance in the exec­ut­ive branch;
  • strengthens congres­sional safe­guards against congres­sional conflicts of interest;
  • strengthens constraints on the “revolving door” between govern­ment and industry that prevent former offi­cials from unduly profit­ing off their time in public service; and
  • requires a code of ethics for the United States Supreme Court.

The For the People Act is a compre­hens­ive and appro­pri­ately aggress­ive set of reforms that would revital­ize and improve our demo­cracy. Amer­ic­ans expect a system that works for every­one. Congress must answer that call by passing this ground­break­ing legis­la­tion.

End Notes