The Fight for Democracy DEMOCRACY Michael Waldman, Wendy Weiser, & JUSTICE Chisun Lee, Lawrence Norden COLLECTED Impeachment WRITINGS Neal Katyal Criminal Justice Reform BRENNAN Cory Booker, Kamala Harris, Amy Klobuchar, Lauren-Brooke Eisen, CENTER Rashad Robinson, Topeka K. Sam, FOR JUSTICE Elizabeth Warren Voting Rights Desmond Meade, Myrna Pérez Racial Justice Ta-Nehisi Coates, Melissa Murray, Wilfred U. Codrington III, Michael German Executive Power Elizabeth Goitein, Susan Rice, Andrea Mitchell, Victoria Bassetti Partisan Gerrymandering Katie Fahey, Michael Li, Yurij Rudensky PLUS: Rule of Law Preet Bharara, Christine Todd Whitman, Mike Castle, Christopher Edley Jr., Chuck Hagel, David Iglesias, Amy Comstock Rick, Donald B. Verilli Jr. Protecting Fundamental Rights Ruha Benjamin, Sherrilyn Ifill, Kate Shaw, Reva Siegel AND: Erwin Chemerinsky, Jennifer Weiss-Wolf Democracy & Justice: Collected Writings 2019 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, in the courts, and in the court of public opinion. ABOUT DEMOCRACY & JUSTICE: COLLECTED WRITINGS 2019 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 2019. All Brennan Center events were produced by Mellen O’Keefe and Adrienne Yee. EDITED BY ALAN J. BEARD This volume was compiled and edited by Alan J. Beard, with assistance from Jeanine Chirlin and Michael Waldman. Beard serves as Senior Policy Associate in the Office of the President. For full versions of any material printed herein, complete with endnotes, please email [email protected]. © 2020 Introduction from the President February 2020 Dear friends, We are at a turning point for our country. At this moment of polarization, our democracy is being put to the test. This isn’t the first time the rule of law has been at risk. Scandal and abuse have often been followed by renewal — in the Progressive Era, after Watergate. But not always. It is our job to turn this hour of corruption into a season of reform. There’s encouraging news. Over the past few years, a democracy movement has been born. Diverse and multiracial, it draws on the energies of millions across the country. It insists that the answer to attacks on democracy is to strengthen democracy. We can’t address the climate crisis — or gun violence, health care, LGBTQ rights, or economic and women’s equality — if we don’t fix our system. This civic energy has produced real progress. H.R 1, the For the People Act, was passed by the House of Representatives. And automatic voter registration, redistricting reform, campaign finance changes, and criminal justice reform measures have been enacted in states across the country. The Brennan Center for Justice at NYU School of Law stands at the center of that fight. We’re independent, nonpartisan, and devoted to the facts. Last year, our experts testified before Congress 12 times. We helped lead efforts to enact public campaign financing in New York. And we exposed the abuse of presidential emergency power. The year 2019 was extraordinary. This volume includes a collection of some of our work. The stakes are even higher in 2020. How can we ensure that the election is free, fair, and secure? How can we make it more likely that the country focuses once again on the values of the Constitution? We look forward to working with you in this great fight in the months and years ahead. Best regards, Michael Waldman President Democracy & Justice: Collected Writings 2019 Table of Contents STRENGTHENING DEMOCRACY American Democracy Is Under Threat . 2 Michael Waldman The For the People Act . 6 Wendy Weiser, Rudy Mehrbani, and Daniel I . Weiner U.S. Elections Are Still Not Safe from Attack . .. 8 Lawrence Norden and Daniel I . Weiner U.S. Election Infrastructure Is Dangerously Under-Regulated . 12 Lawrence Norden, Gowri Ramachandran, and Christopher Deluzio Small Donor Public Financing Significantly Boosts Citizen Engagement . 14 Nirali Vyas, Chisun Lee, and Joanna Zdanys THE PRESIDENCY AND THE RULE OF LAW Government Science and Political Pollution . 18 Preet Bharara, Christine Todd Whitman, Mike Castle, Christopher Edley Jr ., Chuck Hagel, David Iglesias, Amy Comstock Rick, and Donald B . Verilli Jr . The Trump Impeachment . 21 Neal Katyal and Michael Waldman The Law Is Designed to Punish, Not Protect, Whistleblowers . .. 23 Michael German Trump’s Troubling Rebuke of Congressional Oversight . .. 26 Victoria Bassetti and Tim Lau Congress Must Rein In the President’s Emergency Powers . 29 Elizabeth Goitein Things Worth Fighting For . 31 Susan Rice and Andrea Mitchell FAIR REPRESENTATION The Supreme Court Has Failed the Constitution . 34 Michael Waldman and Eliza Sweren-Becker Citizenship Questions on the Census Have No Historical Pedigree . .. 36 Brianna Cea and Thomas Wolf “I’d Like to Take On Gerrymandering in Michigan.” . 38 Katie Fahey Rethinking Race and Redistricting . 41 Michael Li and Yurij Rudensky A Diverse Nation Demands Collaboration . 45 Mireya Navarro VOTING RIGHTS A Surge of Abusive Voter Purges . 48 Kevin Morris Our Last Chance to Make Sure the 2020 Election Is Fair . 51 Myrna Pérez A Leap Forward for Democracy in Florida . 53 Desmond Meade Florida Voters Spoke. The Governor Must Listen. 56 Myrna Pérez, Sean Morales-Doyle, Eliza Sweren-Becker, and Patrick Berry Voter Rolls in States with AVR See Significant Gains . 59 Kevin Morris and Peter Dunphy CRIMINAL JUSTICE REFORM The Steep Costs of Criminal Justice Fees and Fines . 62 Matthew Menendez, Michael Crowley, Lauren-Brooke Eisen, and Noah Atchison The Next President Must Address Mass Incarceration . 65 Ames Grawert and Cameron Kimble New Voices for Reform . .. 67 Cory Booker, Kamala Harris, Amy Klobuchar, Rashad Robinson, Topeka K . Sam, and Elizabeth Warren Undoing the 1994 Crime Bill . 71 Lauren-Brooke Eisen and Inimai Chettiar States Reduce Crime and Incarceration in Tandem . 73 Cameron Kimble and Ames Grawert Examining Prison Contracts Overseas . 75 Lauren-Brooke Eisen THE COURTS The Nation’s Top State Courts Face a Crisis of Legitimacy . 80 Alicia Bannon and Laila Robbins How to Save the Supreme Court . 82 Frederick A . O . Schwarz Jr . Court Packing Is Not the Solution . 90 Walter Shapiro The Supreme Court Needs a Code of Ethics . 92 Johanna Kalb and Alicia Bannon EQUALITY Myth, Culture, and Policy . 96 Ta-Nehisi Coates and Melissa Murray The Government Has the Power to Fight Far-Right Violence. It Must Use It. 98 Michael German and Emmanuel Mauleón The Racist Tilt of the Electoral College . 101 Wilfred U . Codrington III Women and Democracy . 104 Tanzina Vega, Lauren-Brooke Eisen, Chisun Lee, and Jennifer Weiss-Wolf PROTECTING FUNDAMENTAL RIGHTS Stop Collecting Immigrants’ Social Media Data . 108 Faiza Patel Policing, Race, and Technology . 111 Ruha Benjamin, Rashida Richardson, and Sherrilyn Ifill Disrupt, Discredit, and Divide: How the New FBI Damages Democracy . 113 Michael German and Kimberly Atkins Rethinking Reproductive Rights and Health . 115 Melissa Murray, Kate Shaw, Reva Siegel, and Rebecca Traister Taxing Tampons Isn’t Just Unfair, It’s Unconstitutional . 117 Erwin Chemerinsky and Jennifer Weiss-Wolf STRENGTHENING DEMOCRACY American Democracy Is Under Threat Michael Waldman In 2016, the Russian government mounted an aggressive campaign to hack our election infrastructure and spread misinformation. In 2018, the midterms were marred by mass voter purges, long lines, and voter suppression. Both elections made clear: reform is urgently needed. ne year before ballots are cast in November 2020, our election systems are under extraordinary stress. The research conducted by the Brennan Center, bolstered by our experience in the fight for voting rights in states across the country, confirms that there is strong reason for concern. OThe right to vote is at the heart of democracy. Yet over the past decade, 25 states have put in place new laws making it harder to vote, for the first time since the Jim Crow era. Many states continue to disenfranchise people living and working in our communities because they have a past felony conviction. Voter roll purges have surged, particularly in states previously covered by the preclearance provisions of the Voting Rights Act. All these obstacles to the ballot hit hardest communities of color and the poor, young, and elderly. Voter suppression remains a potent threat to American democracy and a bitter challenge to the ideals of equality. And there is a new and unnerving challenge: foreign interference threatens to disrupt and degrade the 2020 election. We all know that Russia intervened in 2016. Progress has been made since then. But next year, several states will still require voters to cast ballots on hackable electronic voting machines that do not leave a paper trail. Others will conduct no postelection audits to verify an accurate vote count. How can we ensure that the 2020 election will be free, fair, and secure? And going forward, how can we modernize our elections so they fully and accurately reflect the voices of Americans? We believe strongly that the best response to attacks on our democracy is to strengthen our democracy. So, we strongly urge Congress to enact bold reform. Here, there is reason for optimism. Earlier this year, this House passed H.R.