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Democracy & Justice Collected Writings The Democracy Movement DEMOCRACY Michael Waldman, Wendy R. Weiser, & JUSTICE Daniel I. Weiner, John Kowal Emergency Powers COLLECTED Elizabeth Goitein WRITINGS Voting Rights Myrna Pérez, Zachary Roth BRENNAN Ending Mass Incarceration Inimai M. Chettiar, Lauren-Brooke Eisen, CENTER Ames C. Grawert FOR JUSTICE Election Integrity Lawrence Norden, Chisun Lee, Ian Vandewalker Racial Justice Theodore R. Johnson, James Forman Jr., Donna Edwards, Michael Steele Constitutional Change Jennifer Weiss-Wolf, Melissa Murray, Wilfred U. Codrington III Partisan Gerrymandering Michael Li, Thomas Wolf PLUS: Rule of Law Preet Bharara, Christine Todd Whitman, Mike Castle, Christopher Edley Jr., Chuck Hagel, David Iglesias, Amy Comstock Rick, Donald B. Verrilli Jr. The Mueller Investigation Daniel S. Goldman, Anne Milgram, Lisa Monaco AND: David Frum, Dahlia Lithwick, Adam Winkler The Brennan Center for Justice at NYU School of Law The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that seeks to improve our systems of democracy and justice. We work to hold our political institutions and laws accountable to the twin American ideals of democracy and equal justice for all. The Center’s work ranges from voting rights to campaign finance reform, from ending mass incarceration to preserving Constitutional protection in the fight against terrorism. Part think tank, part advocacy group, part cutting-edge communications hub, we start with rigorous research. We craft innovative policies. And we fight for them — in Congress and the states, the courts, and in the court of public opinion. About Democracy & Justice: Collected Writings 2018 The material in this volume is excerpted from Brennan Center reports, policy proposals, and issue briefs. We have also excerpted material from public remarks, congressional testimony, and op-ed pieces written by Brennan Center staff and fellows in 2018. All Brennan Center events were produced by Mellen O’Keefe, Adrienne Yee, and Jeanine Plant-Chirlin. Edited by Alan J. Beard This volume was compiled and edited by Alan J. Beard with assistance from Jeanine Plant-Chirlin and Michael Waldman. Alan serves as the Special Assistant to the President. For a full version of any material printed herein, complete with footnotes, please email [email protected]. The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. — Justice William J. Brennan Jr. © 2019 Introduction from the President Dear Friends, In the great fight for the future of constitutional democracy, 2018 was a breakthrough year. Around the world, amid economic and demographic change, broken democratic systems have produced a backlash. We see the rise of autocracy and a normalization of nativism, misogyny, and abuse. Our politics have realigned in ways that challenge the very constitutional order. We are always on the edge, one tweet away from a crisis. But at this time of unease, something big has begun to stir. Citizens have made it clear that the best way to respond to attacks on democracy is to strengthen democracy. At this moment, the Brennan Center for Justice at NYU School of Law stepped forward as a leading national force for change. Independent and rigorous, we fight fear with facts. We generate solutions and bold reforms. The reports, briefs, articles, and talks in this annual volume reflect the energy and scope of our work. And our partnerships with the impressive thought leaders you’ll read in these pages is a key part of what we do to advance change. So much of this work came to a head in the November election. Despite harsh voter suppression, turnout was the highest since 1914. Ballot measures ended gerrymandering in Michigan, Utah, Missouri, and Colorado. In the biggest expansion of the franchise in decades, Florida restored voting rights to 1.4 million people with past felony convictions. Michigan and Nevada enacted automatic voter registration. The Bren- nan Center was proud to have written many of these measures. Weeks later, federal criminal justice reform became law, with our strong support and partnership with a broad coalition of unlikely allies. It marked the start of a true democracy movement in America – launched not by lawyers or politicians, but by millions of citizens taking matters into their own hands. Now we’re fighting to seize this opportunity, in Congress and in the states. This “ideas primary” will help shape the upcoming presidential race and build momentum for change. Justice William J. Brennan Jr. once said: “The Constitution will endure as a vital charter of human lib- erty as long as there are those with the courage to defend it, the vision to interpret it, and the fidelity to live by it.” The Brennan Center is proud to bear his name and to carry on its work in that spirit. Thank you for your support at this time of testing for our country. Michael Waldman President Democracy & Justice: Collected Writings 2018 Table of Contents The Democracy Movement Democracy Is on the Ballot 6 Michael Waldman The Voters Spoke — Now Congress Must Act 8 Wendy R. Weiser and Daniel I. Weiner The Change America Needs Won’t Come From the Supreme Court 10 John Kowal The Presidency and the Rule of Law State of Emergency: What Can a President Do? 14 Elizabeth Goitein Turning Soft Norms Into Hard Law 24 Preet Bharara, Christine Todd Whitman, Mike Castle, Christopher Edley Jr., Chuck Hagel, David Iglesias, Amy Comstock Rick, and Donald B. Verrilli Jr. Reading the Mueller Tea Leaves 27 Daniel S. Goldman, Anne Milgram, and Lisa Monaco Trumpocracy 29 David Frum and Trevor Morrison Presidential Ethics, Not an Oxymoron 31 Daniel I. Weiner Guarding Against Abuses of Executive Power 33 Faiza Patel, Elizabeth Goitein, and Michael Price Voting Rights Abusive Voter Purges 36 Myrna Pérez The Worst Voter Suppression in the Modern Era 38 Zachary Roth and Wendy R. Weiser What’s the Matter With Georgia? 41 Jonathan Brater and Rebecca Ayala The Voter Fraud Hoax Isn’t Funny 43 Michael Waldman Bold Voting Reform Comes to New Jersey 45 Myrna Pérez Voting Rights,Then and Now 47 Bill Moyers, Myrna Pérez, Kristen Clarke, and Michael Waldman Election Integrity Getting Foreign Funds Out of America’s Elections 52 Ian Vandewalker and Lawrence Norden When Elected Officials Control Secret Cash 55 Chisun Lee, Douglas Keith, and Ava Mehta Small Donors and the 2018 Wave 58 Walter Shapiro Federal Dollars to Secure State Elections 61 Lawrence Norden, Liz Howard, and Shyamala Ramakrishna Gerrymandering The Supreme Court Punts on Partisan Gerrymandering 66 Thomas Wolf and Wendy R. Weiser In 2018, Gerrymandering Still Mattered 68 Michael Li In North Carolina, Extreme Maps Subvert the Will of Voters 70 Thomas Wolf and Peter Miller Mass Incarceration After Congress’s First Step on Reform 74 Inimai M. Chettiar and Ames C. Grawert Law Enforcement Leaders to Congress: Pass Sentencing Reform 76 Peter Newsham and Ronal Serpas Crime Continues to Decline 78 Ames C. Grawert, Adureh Onyekwere, and Cameron Kimble Menstrual Equity is Central to Justice for All 81 Jennifer Weiss-Wolf and Kathy Hochul Private Prisons: Lessons From Down Under 83 Lauren-Brooke Eisen Fresh Ideas to End Mass Incarceration 86 Lauren-Brooke Eisen and Inimai M. Chettiar Crime and Punishment in Black America 90 James Forman Jr., Nia-Malika Henderson, and Theodore R. Johnson The Courts Beyond Judicial Elections 94 Alicia Bannon Brett Kavanaugh and Presidential Power 96 Michael Waldman Kavanaugh Rushed Through Without Real Investigation 99 Rudy Mehrbani Dark Money Sells the New Justice 101 Laila Robbins Racial Justice Overcoming Racism Through National Solidarity 104 Theodore R. Johnson A Transformative Step for Democracy in Florida 107 Kevin Morris Fifty Years Later, Dr. King’s Revolution Is Unfinished 110 Theodore R. Johnson, Donna Edwards, and Michael Steele Attention FBI: Black Identity Extremists Do Not Exist 112 Michael German The Constitution The Dangers of a Constitutional Convention 116 Wilfred U. Codrington III The Equal Rights Amendment: A Century in the Making 118 Melissa Murray, Cary Franklin, Carol Jenkins, Carol Robles-Román, Jamia Wilson, Steve Andersson, Caroline Frederickson, and Jennifer Weiss-Wolf The Second Amendment Allows for More Gun Control Than You Think 121 Eric Ruben and Joseph Blocher Corporations and the Constitution 127 Adam Winkler and Dahlia Lithwick THE DEMOCRACY MOVEMENT Democracy Is on the Ballot Michael Waldman In 2018, voters around the country considered ballot measures to enact strong, often transformative democracy reforms. Amid the dramatic contest for congressional control, this article outlined the trend. Less than two weeks later, citizens passed every single one of the measures discussed. The Brennan Center played a key role in this effort. It helped draft the Florida voting rights restoration amendment and two of the redistricting reform proposals, and it first advanced automatic voter registration over a decade ago. he midterm elections have been marred by (The Koch-backed organization Freedom Partners T controversy over alleged voter suppression gave a ringing endorsement.) Formerly incarcerated in Georgia, North Dakota, and elsewhere. Once people have led the drive, going door to door to again, partisans want to make it harder for fellow drum up support. citizens to cast their ballots. It’s ugly. Then there’s partisan gerrymandering. Politicians But amid the dispiriting bid to curb voting, have manipulated district lines since the something else is happening: For the first time country’s founding, but computers have in years, citizens have responded with a robust transformed gerrymandering into a precision push to expand democratic rights. Breakthrough mechanism to blunt the voice of voters. This ballot measures across the country would expand year, the Supreme Court declined to make a voting rights and improve representation.
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