Why Congress Must Pass the 'For the People Act' - Brennan ...
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Why Congress
Must Pass the ‘For
the People Act’
By Wendy Weiser, Daniel I. Weiner, and Dominique Erney UPDATED JANUARY 29, 2021
A
merican democracy urgently needs repair. We now they are certainly not new. For decades, public trust has
have a historic opportunity to bring about trans- declined as our political system’s longstanding challenges
formative change. In both houses of Congress, the have worsened: Citizens’ voices have been silenced
For the People Act — H.R. 1 in the House and S. 1 in the through voter suppression, gerrymandering, and decep-
Senate — was designated as the first bill, a top priority this tive tactics. Wealthy campaign donors maintain outsized
session. This historic legislation responds to twin crises sway over policy. And the guardrails against discrimina-
facing our country: the attack on democracy, epitomized tion, corruption, and manipulation of the system for
in the assault on the Capitol on January 6, and the urgent personal gain have all been cast aside or eroded. The viru-
demand for racial justice. It is based on the key insight that lent coronavirus, whose worst effects in terms of both
the best way to defend democracy is to strengthen democ- health and economics have fallen disproportionately on
racy. If enacted, it would be the most significant voting communities of color, underscores the urgent need for a
rights and democracy reform in more than half a century. functioning democracy that serves all the people.
The 2020 election, like the 2018 midterms, featured But here is the good news: we know what we need to
historic levels of voter mobilization — the highest in over do to address these problems and strengthen American
a century, even in the face of a deadly pandemic. But there democracy. It starts with passing the For the People Act.
were also unprecedented efforts to thwart the electoral The Act incorporates key measures that are urgently
process and disenfranchise voters, primarily in Black and needed, including automatic voter registration and other
brown communities, based on lies about “voter fraud” steps to modernize our elections; a national guarantee of
(culminating in the violent attack on the Capitol). Extreme free and fair elections without voter suppression, coupled
partisan gerrymandering continued to distort far too with a commitment to restore the full protections of the
many races for the House. And despite increased engage- Voting Rights Act; small donor public financing to
ment by small campaign donors, the most expensive empower ordinary Americans instead of big donors (at
campaign in American history was still largely bankrolled no cost to taxpayers) and other critical campaign finance
by a small coterie of individual megadonors and reforms; an end to partisan gerrymandering; and a much-
entrenched interests. needed overhaul of federal ethics rules.
While these problems were more extreme this cycle, These reforms respond directly to Americans’ desire
1 Brennan Center for Justice at New York University School of Lawfor real solutions that ensure that each of us can have a voting because of registration flaws. Some find their
voice in the decisions that govern our lives, as evidenced names wrongly deleted from the rolls. Others fall out of
by their passage in many states, often by lopsided bipar- the system when they move.5
tisan margins. They are especially critical for communities Outdated registration systems also undermine election
of color. Racial justice cannot be fully achieved without a integrity. Incomplete and error-laden voter lists create
system in which all Americans have the means to advo- opportunities for malefactors to disenfranchise eligible
cate for themselves and exercise political power. citizens. Officials with partisan motives can remove
As President Biden remarked in his inaugural address: voters from the rolls because of minor discrepancies, such
democracy is precious, but democracy is also fragile. The as spelling mistakes, incomplete addresses, or other miss-
2020 election revealed a passionate commitment to ing information. These systems are also far more expen-
democracy on the part of tens of millions of Americans sive to maintain than more modern systems. In Arizona’s
who braved a deadly pandemic, voter suppression, and a Maricopa County, for example, processing a paper regis-
concerted campaign of presidential lies to make their tration costs $0.83, compared to $0.03 for applications
voices heard. Now a new Congress and president must processed electronically.6
honor that commitment and fulfill their promise to secure The Covid-19 pandemic put outdated registration
representative democracy in America now and for future systems under even greater stress. Quarantines, illnesses,
generations. 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
Voting Rights result was a dramatic reduction in voter registration rates
in many states.7
The right to vote is at the heart of effective self-gov-
ernment. In the Federalist Papers, Alexander Hamilton Automatic Voter Registration
and James Madison laid down a standard for our democ- Automatic voter registration, a key component of the For
racy: “Who are to be the electors of the federal represen- the People Act, would transform and modernize our
tatives? Not the rich, more than the poor; not the learned, current registration systems. This bold, paradigm-shifting
more than the ignorant; not the haughty heirs of distin- approach would add tens of millions of voters to the rolls,
guished names, more than the humble sons of obscurity cost less, and bolster security and accuracy. It is now the
and unpropitious fortune. The electors are to be the great law in 19 states and the District of Columbia.8 It should
body of the people of the United States.”1 For over two be the law for the entire country.
centuries, we have worked to live up to that ideal, but have Under automatic voter registration (AVR), every eligible
consistently fallen short. Many have struggled, and citizen who interacts with designated government agen-
continue to struggle, for the franchise. The For the People cies, such as the Department of Motor Vehicles (“DMV”),
Act would expand and protect this most fundamental a public university, or a social service agency, is automat-
right and bring voting into the 21st century. ically 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
Modernize Voter choose the default option presented to them. If fully
adopted nationwide, AVR could add as many as 50 million
Registration new eligible voters to the rolls — the largest enfranchise-
ment since the 19th Amendment was ratified.9
One in five eligible Americans is not registered to vote, The policy also requires that voter registration infor-
due in many cases to out-of-date and ramshackle voter mation be electronically transferred to election officials
registration systems.2 We must modernize these systems. as opposed to an antiquated infrastructure of paper forms
The United States is the only major democracy in the and snail mail. This significantly increases the accuracy
world that requires individual citizens to shoulder the of the rolls and reduces the costs of maintaining them.10
onus of registering to vote (and reregistering when they California and Oregon became the first states to adopt
move).3 In much of the country, voter registration still AVR in 2015. Since then, 17 more states and the District
relies on error-prone pen and paper. Paper forms make of Columbia followed — many with strong bipartisan
mistakes and omissions more likely, and they increase the support. In Illinois, for example, the state legislature
risk of inaccurate entry of information into databases by passed AVR unanimously, and a Republican governor
election officials. A 2012 report by the Pew Center on the signed it into law.11
States estimated that roughly one in eight registrations The new system has proven extraordinarily successful,
in America is invalid or significantly inaccurate.4 increasing registration rates in nearly every state where it
These problems decrease turnout. Each Election Day, has been implemented. In Vermont, for example, registra-
millions of Americans go to the polls only to have trouble tions went up by 60 percent after it adopted AVR, and in
2 Brennan Center for Justice Why Congress Must Pass the ‘For the People Act’Georgia, they increased 94 percent. In eight jurisdictions citizenship during the registration transaction. Before that implemented AVR for the 2018 election, 2.2 million anyone is registered, agencies must inform individuals of people were registered to vote through AVR, and up to 6 eligibility, the penalties for illegal registration, and offer million people had their registration information an opportunity to opt out of registrations. Election offi- updated.12 cials, too, are required to send individuals a follow-up There is strong reason to believe that this reform also notice by mail. Indeed, election officials report that AVR boosts turnout. When voters are automatically registered, enhances the accuracy of the rolls.19 they are relieved of an obstacle to voting, thus increasing the likelihood they will show up to the polls. Automatic Same-Day and Online Registration registration also exposes more voters to direct outreach The For the People Act would boost voter participation from election officials and others.13 Indeed, Oregon saw further by establishing same-day and online registration. the nation’s largest turnout increase after it adopted AVR. This would eliminate cumbersome paperwork and wait- It had no competitive statewide races, yet the state’s turn- ing periods. With a few clicks or a trip to the polls with out increased by 4 percent in 2016 — 2.5 percentage proper documentation, eligible voters would be able to points higher than the national average.14 In the eight cast a ballot. jurisdictions analyzed, AVR resulted in hundreds of thou- Same-day registration (SDR) complements AVR, allow- sands of new voters at the polls. Other reforms that make ing eligible citizens to register and vote on the same day. it easier to register have also increased turnout, such as It is particularly useful to people who have not interacted permitting registrants who move anywhere within a state with government agencies or whose information has to transfer their registration and vote on election day at changed since they last did so. And because it allows eligi- their new polling place.15 These measures send a strong ble Americans to vote even if their names are not on the message that all eligible citizens are welcome and encour- voter rolls, SDR safeguards against improper purges, aged to participate in our democracy. registration system errors, and cybersecurity attacks. Many election officials support AVR because it SDR has been used successfully in several states since improves administration and saves money. Virtually every the 1970s. Today, 21 states and the District of Columbia state that has implemented electronic transfer of regis- have passed some form of same day registration, either tration records from agencies such as the DMV to election on election day, during early voting, or both.20 SDR has officials has reported substantial savings due to reduced been shown to boost voter turnout by 5 to 7 percent.21 staff hours processing paper and lower printing and mail- More than 60 percent of Americans support it.22 ing expenses. Eliminating paper forms improves accuracy, The For the People Act also requires states to offer reduces voter complaints about registration problems, secure and accessible online registration. At a time when and reduces the need for the use of provisional ballots.16 many Americans do everything from banking to review- Voters strongly support AVR. According to recent poll- ing medical records online, voters want this convenient ing, 65 percent of Americans favor it. Michigan and method of registration. The online registration provisions Nevada adopted AVR this past election by popular refer- in the For the People Act would let all voters register, endum, with overwhelming support from voters across update registration information, and check registrations the political spectrum. Alaska voters passed AVR in 2016 online. This option has been especially critical during the with nearly 64 percent of the vote. 17 Covid-19 pandemic, when voters were prevented from The For the People Act sensibly makes AVR a national registering by other means. The act would also ensure standard, building on past federal reforms to the voter that these benefits are available to citizens who do not registration system.18 Critically, the act requires states to have drivers licenses. put AVR in place at a wide variety of government agencies In addition to convenience and safety, online registra- beyond the DMV, including those that administer Social tion saves money and improves voter roll accuracy. Security or provide social services, as well as higher educa- Processing electronic applications is a fraction of the cost tion institutions. It requires a one-time “look back” at of processing paper applications, and election officials agency records to register eligible individuals who have report that letting voters enter their own information previously interacted with government agencies, while significantly reduces the likelihood of incomplete appli- protecting voters’ sensitive information from public cations and mistakes. It is not surprising, therefore, that disclosure. online registration is incredibly popular and has spread AVR also includes multiple safeguards to ensure that rapidly. In 2010, only six states offered online voter regis- ineligible voters are not registered and to prevent people tration. Now, 39 states and the District of Columbia do.23 from being punished for innocent mistakes. The govern- Taken together, AVR, SDR, and online registration ment agencies designated for AVR regularly collect infor- would ensure that no eligible voter is left out of our demo- mation about individuals’ citizenship status and age, and cratic process. It is time to bring these reforms to the they are already required to obtain an affirmation of U.S. whole country. 3 Brennan Center for Justice Why Congress Must Pass the ‘For the People Act’
Protect Against Flawed Purges Restore the
Modernizing our voter registration system means not only
registering all eligible voters, but also making sure those Voting Rights Act
eligible voters stay on the voter rolls. Voter purges — the
large-scale deletion of voters’ names from the rolls, often The For the People Act contains an express commitment
using flawed data — are on the rise. In 2018, they were a to restore the full protections of the Voting Rights Act,
key form of vote suppression used by election officials which the U.S. Supreme Court crippled with its ruling in
around the country. 24 We should address this growing Shelby County v. Holder in 2013.28 VRA restoration is
threat by curbing improper efforts to remove eligible accomplished through separate legislation, the Voting
voters. Rights Advancement Act of 2019, or H.R.4, which passed
Purge activity has increased at a substantially greater the House of Representatives on December 6, 2019.29
rate in states that were subject to federal oversight under As recent experience makes clear, restoration of the
the Voting Rights Act of 1965 (VRA) prior to the Supreme VRA — the engine of voting equality in our country — is
Court’s decision in Shelby County v. Holder. The Brennan critical. The VRA is widely regarded as the single most
Center has calculated that more than 17 million voters effective piece of civil rights legislation in our nation’s
were purged from the polls nationwide between 2016 and history.30 As recently as 2006 it won reauthorization with
2018. Over the same period, the median purge rate in overwhelming bipartisan support.31 But in the absence of
jurisdictions previously covered by the VRA was 40 a full-force VRA, the 2018 midterm elections were marred
percent higher than the purge rate in jurisdictions that by the most brazen voter suppression seen in decades.32
were not covered. Georgia, for example, purged twice as Election officials executed large-scale voter purges and
many voters — 1.5 million — between the 2012 and 2016 closed polling places and early voting sites, especially in
elections as it did between 2008 and 2012. The state also minority neighborhoods.33 Burdensome voter ID require-
saw most of its counties purge more than 10 percent of ments targeted minority citizens.34 Unnecessarily strict
their voters within the past two years alone. Texas purged registration rules, like Georgia’s “exact match” policy, put
363,000 more voters between 2012 and 2014 than it did 53,000 voter registrations on hold, the overwhelming
between 2008 and 2010. We ultimately found that 2 majority of whom were Black, Latino, and Asian Ameri-
million fewer voters would have been purged between can voters.35 And many absentee ballots were suspiciously
2012 and 2016, and 1.1 million fewer between 2016 and rejected.36 A fully functional VRA would have prevented
2018, if jurisdictions previously subject to preclearance many of these abuses. We must commit to restoring the
had purged at the same rate as other jurisdictions.25 act to ensure that all Americans have a voice in our
Incorrect purges disenfranchise legitimate voters and democracy.
cause confusion and delay at the polls. And purge prac- For nearly five decades, the linchpin of the VRA’s
tices can be applied in a discriminatory manner that success was the Section 5 preclearance provision. It
disproportionately affects minority voters. In particular, required certain states with a history of discriminatory
matching voter lists with other government databases to voting practices to obtain approval from the federal
ferret out ineligible voters can generate racially discrimi- government before implementing any voting rules
natory results if the matching is done without adequate changes. Section 5 deterred and prevented discriminatory
safeguards. Black, Asian American, and Latino voters are changes to voting rules right up until the time the
much more likely than white voters to have one of the Supreme Court halted its operation. Between 1998 and
most common 100 last names in the United States, result- 2013 alone, Section 5 blocked 86 discriminatory changes
ing in a higher rate of false positives.26 (13 in the final eighteen months before the Shelby County
The For the People Act creates strong protections ruling), caused hundreds more to be withdrawn after a
against improper purges. It puts new guardrails on the use Justice Department inquiry, and prevented still more from
of interstate databases (such as the now defunct and being advanced because policymakers knew they would
much maligned Crosscheck system) that purport to iden- not pass muster.37
tify voters that have reregistered in a new state, but that Shelby County eviscerated Section 5 by striking down
have been proven to produce deeply flawed data. 27 It the “coverage formula” that determined which states were
prohibits election officials from relying on a citizen’s fail- subject to preclearance. That resulted in a predictable
ure to vote in an election as reason to remove them from flood of discriminatory voting rules, contributing to a now
the rolls. And it requires election officials to provide timely decade-long trend of states adopting new restrictions,
notice to removed voters, as well as an opportunity to which the Brennan Center has documented extensively.
remedy their registration before an election. Within hours of the Court’s decision, Texas announced
that it would implement what was then the nation’s strict-
est voter identification law — a law that had previously
been denied preclearance because of its discriminatory
4 Brennan Center for Justice Why Congress Must Pass the ‘For the People Act’impact. Shortly afterward, Alabama, Arizona, Florida, Regardless of their particular terms, criminal disenfran-
Mississippi, North Carolina, and Virginia also moved chisement laws are rooted in discriminatory practices that
ahead with restrictive voting laws or practices that previ- disproportionately impact Black voters. In 2016, 1 in 13
ously would have been subject to preclearance.38 In the voting-age Black citizens could not vote, a disenfranchise-
years since, federal courts have repeatedly found that new ment rate more than four times that of all other Ameri-
laws passed after Shelby County made it harder for cans.44 This unequal impact is no accident — many states’
minorities to vote, some intentionally so.39 criminal disenfranchisement laws are rooted in 19th
Section 2 of the VRA — which prohibits discriminatory century attempts to evade the Fifteenth Amendment’s
voting practices nationwide and permits private parties mandate that Black men be given the right to vote.45
and the Justice Department to challenge those practices This disproportionate impact on people of color means
in court — remains an important bulwark against discrim- that all too often, communities are shut out of our democ-
ination. But Section 2 lawsuits are not a substitute for racy. Disenfranchisement laws have a negative ripple
preclearance. They are far more lengthy and expensive, effect beyond those people within their direct reach.
and often do not yield remedies for impacted voters until Research suggests that these laws may affect turnout in
after an election (or several) is over.40 neighborhoods with high incarceration rates, even among
H.R. 4 updates the VRA’s coverage formula to restore citizens who are eligible to vote.46 This is not surprising:
the act’s full force. It is backed by a thorough legislative Children learn civic engagement habits from their
record documenting the recent history of voter suppres- parents. Neighbors encourage each other’s political
sion in U.S. elections. While H.R. 4 passed in the House participation. And when a significant portion of a commu-
of Representatives, it has yet to be taken up by the Senate. nity is disenfranchised, it sends a damaging message to
This crucial legislation must become law in order to fortify others about the legitimacy of democracy and the respect
the right to vote and the integrity of our elections. The given to their voices.
For the People Act commits us to this goal. 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
Restore Voting Rights to provide written notice to individuals with criminal convic-
tions when their voting rights are restored.
People with Prior These changes would have a profoundly positive impact
Convictions
on affected citizens and society. We all benefit from the
successful reentry of formerly incarcerated citizens into
our communities. Restoring their voting rights makes
Nationally, state laws deny 4.5 million citizens the right clear that they are entitled to the respect, dignity, and
to vote because of a criminal conviction — 3.2 million of responsibility of full citizenship.
whom are no longer incarcerated. The laws that disen- Voting rights restoration also benefits the electoral
franchise them originate primarily from the Jim Crow era, process by reducing confusion and easing the burdens on
shutting people who work, pay taxes, and raise families elections officials to determine who is eligible to vote. If
out of our political system.41 We should restore voting every citizen living in the community can vote, officials
rights to Americans living in the community. This would have a bright-line rule to apply. This clear rule also elim-
strengthen our communities, offer a second chance to inates one of the principal bases for erroneous purges of
those who have served their time, and remove the stain eligible citizens from the voting rolls.47 In past elections,
of a policy born out of Jim Crow. states have botched attempts to remove Americans with
Disenfranchisement laws vary dramatically from state past criminal convictions from the rolls, improperly
to state. In states like Vermont and Maine, people removing many eligible citizens. For example, in 2016
currently in prison are allowed to vote. Some states distin- thousands of Arkansans were purged because of
guish between different types of felonies, while others supposed felony convictions — but the lists used were
treat repeat offenders differently. Jurisdictions also have highly inaccurate, and included many who had never
varying rules on what parts of a sentence must be committed a felony, or who had had their voting rights
completed before rights are restored, such as paying off restored.48
debt or other legal financing obligations.42 Navigating this For these reasons, rights restoration is immensely
patchwork of state laws causes confusion for everyone popular regardless of political views. In November 2018,
— including election officials and prospective voters — 65 percent of Florida voters passed a ballot initiative
about who is eligible to vote. The real-world result is large- restoring voting rights to 1.4 million of their fellow resi-
scale disenfranchisement not only of ineligible persons, dents, with a massive groundswell of bipartisan support.
but also of potential voters who are eligible to register but Unfortunately, the state legislature significantly undercut
wrongly believe they are barred from doing so by a prior the will of the people by conditioning rights restoration
conviction.43 on the payment of criminal justice fees and fines, a move
5 Brennan Center for Justice Why Congress Must Pass the ‘For the People Act’that was later upheld by a federal court of appeals. Loui- strated the value of mail voting, it also exposed the defi-
siana, through bipartisan legislation, restored voting ciencies and inequities of mail voting systems in many
rights to nearly 36,000 people convicted of felonies. In states. First, many of the changes that increased access
December of 2019, newly elected Governor Andy Beshear to mail voting were made through temporary legislation
signed an executive order restoring the vote to some or timebound executive orders that expired after the 2020
140,000 Kentuckians. Shortly after, the New Jersey legis- general election. Second, even in the face of the pandemic,
lature restored voting rights to 80,000 people on parole a number of states continued to place unreasonable
or probation. Governor Kim Reynolds, Republican of restrictions on the ability to vote by mail. For example,
Iowa, recently signed an executive order that restores five states continued to require voters to provide an
voting rights to Iowans who have completed their excuse for not voting in person. That was down from 17
sentences. And over the past two decades, 18 states have states the previous election cycle, but only 1 of the states
restored voting rights to segments of the population.49 that eliminated excuse requirements passed legislation
Congress has the authority to act. Many state criminal to do so permanently.55
disenfranchisement laws were enacted with a racially In addition, eight states still required voters to obtain a
discriminatory intent and have a racially discriminatory witness signature or notary to cast a mail ballot. And in
impact, violating the Fourteenth and Fifteenth Amend- 28 states, ballots could still be rejected for technical
ments, which vest Congress with broad power to enforce defects unrelated to voter eligibility, without any notice
their protections. Congress can also act under its Article or opportunity to correct the issue after Election Day.56
I power to set the rules for federal elections. The Supreme Three closely contested states — Iowa, Ohio, and Texas
Court has previously upheld the use of this power in anal- — also limited the use of secure ballot drop boxes for
ogous circumstances, such as when Congress lowered voters to submit their absentee ballots. Similarly, Penn-
the voting age to 18 in federal elections.50 It is time to sylvania tossed thousands of votes from eligible voters
finally put one of the most troubling legacies of the Jim who did not place their absentee ballots in a so-called
Crow era behind us. “privacy sleeve” (an extra envelope that encases a ballot
within a mailing envelope).57 Barriers to mail voting had
a disproportionately negative impact on Black and brown
Strengthen Mail voters.58 And they would have likely disenfranchised far
more people had voter mobilization not been so high.
Voting Systems In the face of ongoing efforts to unreasonably limit mail
voting options, the For the People Act would make
The For the People Act would also create a baseline stan- concrete improvements to guarantee all voters reason-
dard for access to mail voting in federal elections. The able, secure access to this method for casting a ballot.
2020 election season, which took place during a global To start, the act requires states to give every voter the
pandemic, made clear that Americans need different option to vote by mail. It also removes a key barrier to
options for how to vote, including the option to vote by accessing mail voting by requiring prepaid postage for all
mail, in order to accommodate the needs of a diverse election materials, including registration forms and ballot
electorate. What’s more: mail voting is increasingly popu- applications. In addition to making it easier to request a
lar with voters. Even before the pandemic, roughly mail ballot, the act simplifies the process of returning the
one-quarter of American voters cast mail ballots in the ballot by requiring states to provide drop boxes for federal
2014, 2016, and 2018 presidential elections. 51 That races, as well as by clarifying that all voted mail ballots
percentage shot up this past November, as more than 65 should be carried free of postage. In states where most or
million Americans successfully and securely voted by all voters vote by mail, easy access to drop boxes is consid-
mail.52 Increased mail voting undoubtedly contributed to ered a best practice, as drop boxes are secure and conve-
the surge in participation in the 2020 elections, which nient, enabling a speedier ballot delivery than the postal
reached 66.7 percent of the voting-eligible population service. In 2016, a majority of voters in Colorado (73
(over 159 million people), the highest rate in over a percent), Oregon (59 percent), and Washington (65
century.53 percent), — all “vote at home” states — chose to return
This surge in mail voting was enabled by significant their ballots to a physical location rather than send them
expansions of access to mail voting in many states. These via mail.59
reforms included broadening the scope of who could vote The act would also require states to provide voters with
by mail; automatically mailing ballot applications or a way to track their mail ballot and confirm its receipt.
ballots to eligible voters; implementing better processes The ability to track a ballot is important for election secu-
for voters to receive notice of and cure defective mail rity, as election officials can locate lost ballots. Likewise,
ballots; and extending ballot return deadlines, among it ensures that every valid vote is counted by empowering
other critical reforms.54 voters to confirm the arrival of their ballot.60 The For the
Unfortunately, although the 2020 election demon- People Act allows states to access funds allocated in the
6 Brennan Center for Justice Why Congress Must Pass the ‘For the People Act’Help America Vote Act to develop such a program. lems like registration errors or voting machine glitches
Many election officials support the expansion of mail before they impact most voters. For these reasons, elec-
voting.61 In addition to easing access to the ballot, tion officials report high satisfaction with early voting.
increased mail voting lightens the administrative burden Early voting is popular with voters too, with study after
on our in-person voting systems. If more people can vote study showing a significant positive effective on voter
early by mail, that means fewer voters have to wait in line satisfaction.66
at the polls. Election officials and experts agree that mail Early voting is a critical element of a convenient and
voting is highly secure. All mail ballots are marked by modern voting system. A national standard is long
hand, which means there is a paper trail to enable effec- overdue.
tive post-election audits.62 Enhanced mail voting can lead
to a smoother election experience for voters and officials
alike.
Protect Against
Deceptive Practices
Institute Nationwide Attempts to suppress voting through deception and
Early Voting intimidation remain all too widespread. Every election
cycle, these tactics are documented by journalists and
Every year, Americans across the country struggle to get nonpartisan Election Protection volunteers.67 This is not
to the polls on Election Day. Full-time jobs, childcare a new problem, but social media platforms make the mass
needs, disabilities, and other factors prevent them from dissemination of misleading information easy and allow
traveling to their polling place to cast a ballot. Sometimes, for perpetrators to target particular audiences with
even after making the time and the journey, long lines disturbing precision. In 2016, they were especially preva-
cause them to turn away. We should alleviate this problem lent, and not just on the part of domestic actors. Russian
by guaranteeing a minimum two-week period for early operatives also engaged in a concerted disinformation
voting in federal elections. and propaganda campaign over the internet that aimed,
Holding elections on a single workday in mid-Novem- in part, to suppress voter turnout, especially among Black
ber is a relic of the 19th century. It was done for the conve- voters.68 We should increase protections against such
nience of farmers who had to ride a horse and buggy to efforts.
the county seat in order to cast a ballot.63 This no longer While federal law already prohibits voter intimidation,
works for millions across the country. Early voting helps fraud, and intentional efforts to deprive others of their
to modernize the electoral process to make it easier for right to vote, existing laws have not been strong enough
hardworking Americans to get to the polls. It also helps to deter misconduct. Moreover, no law specifically targets
to minimize crowding at polling places. deceptive practices, nor is there any authority charged
Forty-five states and the District of Columbia offered with investigating such practices and providing voters
some opportunity to vote in person before Election Day with corrected information.
in 2020. More than a dozen of those states offer early The For the People Act protects voters from deception
voting for a period comparable to or greater than the and intimidation in three ways. First, it increases criminal
two-week period leading to Election Day required by the penalties for false or misleading statements, as well as
For the People Act.64 But the absence of a national stan- intimidation, aimed at impeding or preventing a person
dard means that some states have few or inconsistent from voting or registering to vote. Second, it empowers
early voting hours. Other states have engaged in politi- citizens to go to court to stop voter deception. Third, it
cized cutbacks to early voting. Over the past decade, blunts the effect of deceptive information by requiring
multiple states have reduced early voting days and/or sites designated government officials to disseminate accurate,
used disproportionately by Black voters, such as by elim- corrective information to voters. These provisions will
inating early voting on the Sunday before Election Day. give federal law enforcement agencies and private citizens
Federal courts have struck down these kinds of early the opportunity to stop bad actors from undermining our
voting cutbacks in North Carolina and Wisconsin because elections.
they were intentionally discriminatory.65
The For the People Act will make voting more manage-
able by requiring that states provide two weeks of early Campaign Finance
voting and equitable geographic distribution of early
voting sites. A guaranteed early voting period will reduce We also need to overhaul the role of money in politics.
long lines at the polls and ease the pressure on election Thanks in part to Citizens United v. FEC and other harm-
officials and poll workers on Election Day. It will also ful court decisions, a small class of wealthy donors has
make it easier for election officials to spot and solve prob- achieved unprecedented clout in American elections.69
7 Brennan Center for Justice Why Congress Must Pass the ‘For the People Act’That distorts our democracy and undermines the will of those of average citizens.
American voters. We should pass reforms to counteract In 2017, for example, Congress passed a $1.5 trillion
the worst effects of Citizens United and amplify the voices corporate tax overhaul, an avowedly donor-driven initia-
of everyday Americans in our campaigns. tive that enjoyed tepid public support at best.78 The tax
bill made it over the finish line in part because of explicit
warnings that “financial contributions will stop” if it failed
Small Donor to pass.79 There are many other examples of government
policy aligning more with the preferences of the donor
Public Financing class than with those of most other Americans, especially
with respect to issues related to wealth inequality, like
To truly counteract the worst effects of Citizens United, wages, housing, and financial regulation.80
we need to create a small-donor public financing system The clout that donors wield in our political system has
for federal elections. This reform will give candidates a contributed to a sense of powerlessness on the part of
viable option to fund their campaigns without relying on millions of everyday Americans. Overwhelming majorities
wealthy campaign donors and enable working Americans tell pollsters that corruption is widespread in the federal
to increase the financial support they can provide to government, that they believe people who give a lot of
candidates who champion their policy preferences. money to elected officials have more influence than
America’s system of privately financed campaigns gives others, that money has too much influence in political
a small minority of wealthy donors and special interests campaigns, and that they blame money in politics and
unparalleled sway. Super PACs — political committees wealthy donors for dysfunction is the U.S. political
that can raise and spend unlimited funds thanks to Citi- system.81
zens United — have raised more than $8 billion to spend The central role of wealthy private donors poses special
on influencing elections.70 As of 2018, roughly $1 billion challenges for communities of color. At the highest
had come from just 11 people.71 Dark money groups that contribution levels, the donor class has long been over-
keep their donors secret, but which we know are funded whelmingly white (and disproportionately male).82 One
by many of the same donors who back super PACs, have consequence is that policies that would disproportionally
spent well over $1 billion more.72 Overall, in the decade benefit people of color, such as raising the minimum
since Citizens United, donors who give more than wage, tend to be much more popular with ordinary people
$100,000 have come to dominate federal campaign fund- than with influential political donors.83 The cost of
raising. Even during the supposed small donor boom of campaigns is also a barrier to people of color running for
the 2018 midterms, the roughly 3,500 donors who office, especially women.84 In 2018, Black women running
contributed at least $100,000 easily outspent all individ- for Congress raised only a third of what other female
ual small donors (of $200 or less), who numbered at least candidates received from large donors.85 Facing these
7 million.73 In fact, while the number of small individual structural barriers, potential candidates often decline to
donors has increased in recent years in absolute terms, run at all — as one operative notes, “[e]specially for black
their total share of federal campaign spending has women, raising money is oftentimes a major deterrent to
remained flat, accounting for about 20 percent of total why they don’t get into politics or run for election.86
donations.74 In the two most recent midterm elections, The For the People Act addresses these problems
the top 100 super PAC donors gave almost as much as all head-on by amplifying the voices of the everyday voters,
the millions of small donors combined.75 primarily through small donor matching. Small donor
The outsized role of large campaign donors forces matching is a pathbreaking solution to the problem of big
candidates to spend an inordinate amount of time money in politics. While its potential may be profound,
focused on their concerns. One party fundraising presen- the basics of this system are simple. Candidates opt into
tation from several years ago suggested that new repre- the system by raising enough small start-up donations to
sentatives spend four hours a day soliciting large qualify and accepting certain conditions, such as lower
contributions.76 As Senator Chris Murphy of Connecticut contribution limits. Donors who give to participating
noted of the hours he spent calling donors, “I talked a lot candidates in small amounts will then see their contribu-
more about carried interest inside of that call room than tions matched by public money. The For the People Act
I did at the supermarket. [Wealthy donors] have funda- would match donations to participating House and
mentally different problems than other people . . . And so Senate candidates of $1-$200 at a six-to-one ratio, the
you’re hearing a lot about problems that bankers have and same ratio used until recently in New York City’s highly
not a lot of problems that people who work in the mill in successful program.87
Thomaston, Conn., have.”77 Small donor matching has a long and successful history
Unsurprisingly given this dynamic, researchers find that in American elections. It was first proposed more than a
government policy is much more responsive to the pref- century ago by President Theodore Roosevelt. Congress
erences of the wealthy and business interest groups than incorporated a one-to-one small donor match for prima-
8 Brennan Center for Justice Why Congress Must Pass the ‘For the People Act’ries into the presidential public financing system enacted all Americans. The For the People Act’s matching program
in 1971. The vast majority of major party presidential represents the best hope for bringing such a change
candidates from 1976 to 2008 used matching funds in about.
their primary campaigns. Thanks to the presidential In addition to small donor matching, the For the People
public financing system, Ronald Reagan was reelected by Act also creates a pilot program to provide eligible donors
a landslide in 1984 without holding a single fundraiser. with $25 in “My Voice Vouchers” to give to congressional
Two years later, the bipartisan Commission on National candidates of their choice in increments of $5. While less
Elections concluded that “public financing of presidential common, vouchers are another promising type of small
elections has clearly proved its worth in opening up the donor public financing, one that is especially beneficial
process, reducing the influence of individuals and groups, for Americans who cannot afford to make even small
and virtually ending corruption in presidential election donations. Voters in the city of Seattle overwhelmingly
finance.”88 passed a voucher program in 2015, which has brought
Small donor matching has also found success at the thousands of new donors into the political process, most
state level, where it has been adopted in a wide variety of of whom are women, people of color, and/or younger and
jurisdictions — including most recently in New York less affluent than the city’s overall donor pool.99
State.89 The system that has been studied the most is New Finally, the For the People Act revamps the presidential
York City’s, which has existed since the 1980s and public financing system, which currently provides match-
currently matches donations of up to $175.90 The vast ing funds to primary candidates and block grants to
majority of city candidates participate.91 Studies of the general election nominees. Despite its initial success, that
2009 and 2013 city elections found that participating system ultimately failed because it did not afford candi-
candidates took in more than 60 percent of their funds dates sufficient funds to compete in light of the dramatic
from small donors and the public match.92 These donors growth in campaign costs.100 The For the People Act
are far more representative of the real makeup of New addresses this problem by increasing the primary match
York than big donors in terms of race, income, education to a six-to-one ratio, providing matching funds to party
level, and geographic location.93 Candidates who partici- nominees in the general election and repealing burden-
pate in the small donor matching program also raise some limits on how much participating candidates can
significantly more money from donors in their own spend.
districts than other candidates running in the same
areas.94
Along with expanding the donor pool, the city’s small
door matching system has also helped more diverse
Shoring Up Other Critical
candidates run. These include the city’s first Black mayor Campaign Finance Rules
and New York State’s first female and first Black elected
attorney general, who began her career on the city We must also fortify other critical campaign finance rules
council.95 to curb dark money, counter foreign interference in U.S.
The For the People Act’s small donor matching provi- elections, and make it harder to sidestep campaign contri-
sions would transform campaign fundraising in federal bution limits. These are some of the biggest challenges
elections. They would allow every candidate to power for our campaign finance system. As recently as 2006,
their campaign with small donations; recent Brennan almost all federal campaign spending was raised in accor-
Center studies of congressional fundraising found that dance with federal contribution limits and fully transpar-
almost all congressional candidates would be able to raise ent. But Citizens United made it possible for new types of
as much or more as they do under the current system, and entities to spend limitless funds on electoral advocacy
that the greatest benefits would go to female candidates — including super PACs and dark money groups that are
of color.96 not required to publicize their sources of funding.101 As
The For the People Act accomplishes this transforma- noted, such groups have spent billions on federal elec-
tion at no cost to taxpayers — the public match is instead tions, much of it coming from a handful of billionaire
funded primarily by a small surcharge on criminal and megadonors. All of this spending tends to be concen-
civil penalties assessed against corporate wrongdoers. trated in the closest races. One Brennan Center study of
And even if this were not the case, the price tag is exceed- the 2014 midterms showed that more than 90 percent of
ingly modest — roughly 0.01 percent of the overall federal dark money spent on Senate races that year was concen-
budget over ten years.97 The reality is that campaigns cost trated in the eleven most competitive contests.102
money, which must come from somewhere. When Dark money is an especially troubling phenomenon.
wealthy donors and special interests fund our campaigns, The lack of donor disclosure deprives voters of critical
they expect something in return. Taxpayers are too often information about who is trying to influence them and
the ones left to pay the real bill.98 We need a system that what those spenders want from the government. It is
will create greater incentives to enact policies that benefit donor disclosure, as the Citizens United court itself
9 Brennan Center for Justice Why Congress Must Pass the ‘For the People Act’pointed out, that allows voters to determine whether The For the People Act takes several key steps to deal
elected leaders “are in the pocket of so-called ‘moneyed with these problems. First, it closes legal loopholes that
interests.’”103 have allowed dark money to proliferate by requiring all
More recently, it has come to light that this lack of groups that spend significant sums on campaigns to
transparency also provides multiple avenues for foreign disclose the donors who pay for that spending. Second,
governments and nationals to meddle in the American it expands transparency requirements to apply to online
political system. Dark money is one such avenue. For campaign ads on the same terms as those run on more
instance, as of 2020, there was an ongoing investigation traditional media. It also strengthens the “paid for”
into ties between the Russian government and the disclaimers that are required to be included in such ads.
National Rifle Association, a 501(c)(4) organization that And it requires the largest online platforms, with over 50
spent tens of millions of dollars in dark money on the million unique visitors per month, to establish a public
2016 presidential race.104 file of requests to purchase political ads akin to the file
Russian operatives in the 2016 election also took broadcasters have long been required to maintain.110
advantage of weak disclosure rules for paid internet ads. Finally, it tightens restrictions on coordination between
Overall, political advertisers spent $1.4 billion online in candidates and all outside groups that can raise unlimited
the 2016 election, almost eight times what they spent in funds. These are valuable reforms that, like small donor
2012; one projection estimates that their spending public financing, will help blunt the worst effects of Citi-
increased to $1.8 billion in the 2020 cycle.105 Online ads zens United and bring greater accountability to our
are cheap to produce and disseminate instantly to vast campaigns.
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
Overhaul the FEC
discord in the U.S. electorate; lowering turnout (especially A third important priority is to overhaul the dysfunctional
among Black voters); and, once Donald Trump became Federal Election Commission, which has failed to mean-
the Republican nominee, helping him defeat Hillary Clin- ingfully enforce existing rules and would almost certainly
ton.106 Moscow’s efforts in 2016 may serve as a blueprint struggle to implement other ambitious reforms.
for other malefactors. As former Homeland Security The FEC’s structure dates back to the 1970s and was
Secretary Jeh Johnson put it, “The Russians will be back, designed to prevent the agency from taking any decisive
and possibly other state actors, and possibly other bad action without bipartisan agreement among its commis-
cyber actors.”107 Indeed, disinformation campaigns spon- sioners. No more than three of its six members can be
sored by the Russian, Chinese and other foreign govern- affiliated with any one party, and at least 4 votes are
ments appear to have been widespread in 2020 and will required to enact regulations, issue guidance, or even
likely be a feature of our elections for the foreseeable investigate alleged violations of the law. By longstanding
future.108 tradition, each of the two major parties takes half the
Beyond questions of transparency, there is also the FEC’s seats.111 For much of 2019 and 2020, the Commis-
problem of candidates working closely with outside sion did not even have a quorum of commissioners,
spenders, including both super PACs and dark money because only 3 of its 6 seats were occupied.112
groups, to circumvent contribution limits. The Citizens The FEC’s design dates back to a time when disagree-
United Court wrongly assumed this would not happen. It ments over the government’s role in regulating money in
was the very “absence of prearrangement and coordina- politics did not necessarily track with partisan affiliation.
tion” that the Court thought would make outside spend- Ordinary Americans of all political stripes still over-
ing not particularly valuable to candidates, and thus not whelmingly support strong campaign finance laws, but
a significant corruption risk. That is why, unlike direct party elites are now sharply divided, which has left the
contributions to candidates, outside spending cannot be commission mired in gridlock.113 Even before it lost its
limited. But even if one accepts the Court’s flawed reason- quorum, the commission routinely deadlocked along
ing, the reality is that a great deal of outside spending is party lines over whether to pursue significant campaign
anything but independent. In 2016, for example, most finance violations — often after sitting on allegations for
presidential candidates had personal super PACs run by years without even investigating them. Its process for
top aides or other close associates, whose only purpose issuing new regulations had also virtually ground to a halt.
was to get the candidate elected and for which the candi- Commissioners were increasingly unable to agree even
date often personally raised funds or even appeared in on how to answer requests for interim guidance received
ads. These entities are also becoming increasingly through the commission’s advisory opinion process, leav-
common in Senate and House races; the trend continued ing candidates, parties, and others to decipher the law for
in 2020.109 All of these factors have rendered campaign themselves without assistance.114
contribution limits virtually meaningless. FEC dysfunction has played a critical role in the
10 Brennan Center for Justice Why Congress Must Pass the ‘For the People Act’creation of many of our political system’s worst problems, ensure that the campaign finance laws we have on the including dark money, rampant collaboration between books will be fairly and effectively enforced. candidates and supposedly independent outside groups, and many of the gaps in the law that increase our vulner- ability to foreign interference in our campaigns.115 As a Redistricting Reform bipartisan group of lawmakers wrote President Trump in 2018, a dysfunctional FEC “hurts honest candidates who Extreme partisan gerrymandering is another threat are trying to follow the letter of the law and robs the to our democracy’s long-term health. We should require American people of an electoral process with integrity.”116 independent citizen commissions for congressional redis- If not addressed, the commission’s problems could stymie tricting; outlaw partisan gerrymandering and establish implementation of the other ambitious reforms in the For other clear criteria for drawing lines; and make the redis- the People Act. Moreover, the agency’s inability to enforce tricting process more transparent and participatory. campaign finance laws contributes to a broader culture The need for redistricting reform is urgent. Extreme of impunity at a time of eroding respect for the rule of law gerrymandering has reached levels unseen in the last 50 and democratic values more generally.117 years.123 As a result, shifts in political currents have had The For the People Act addresses the main flaws of the virtually no electoral impact in the most heavily gerry- FEC through several targeted changes. It curtails gridlock mandered states. For example, in 2018 — a political by reducing the number of commissioners from six to five, tsunami year for Democrats — no districts changed with no more than two affiliated with any party — effec- parties in Ohio and North Carolina, two states with tively requiring one commissioner to be a tie-breaking extremely biased maps. Despite the fact that Democrats independent. It also provides the commission with a real, earned nearly half the vote in both states, they won only presidentially appointed chairperson118 to serve as its chief a quarter of the seats. The overwhelming majority of the administrative officer. And it ends the practice of allowing seats that did change parties in 2018 — 72 percent — commissioners to remain in office indefinitely past the were drawn by commissions and courts instead of parti- expiration of their terms, which has given Congress and san legislatures. 124 A Democratic gerrymander in the president an excuse to avoid appointing new members, Maryland was proven to be just as unbreakable in the likely contributing to the agency’s recent loss of its Republican wave of 2014.125 Redistricting abuse is a bipar- quorum.119 Finally, the For the People Act streamlines the tisan problem —both parties will draw districts that serve commission’s enforcement process by giving its nonpar- their partisan ends if given the opportunity. tisan staff authority to investigate alleged campaign Too often, communities of color bear the brunt of these finance violations and dismiss frivolous complaints.120 efforts. When Republican-drawn maps in North Carolina, All of these changes are designed to bring the FEC’s Texas, and Virginia were successfully challenged on the structure more in line with that of other important federal grounds that they discriminated against minority voters, regulators. Critically, however, the For the People Act also Republicans defended the maps by arguing that politics, contains strong safeguards to protect a revitalized FEC rather than race, had been the driving force behind their from becoming a tool for partisan overreach. maps. Likewise, Democrats in Maryland rejected a For instance, the For the People Act seeks to ensure congressional map that would have given Black voters partisan balance on the new FEC by providing that nomi- additional electoral opportunities because that would nees to seats on the commission are considered affiliated have created an additional Republican seat.126 Without a with a party if they have had any connection to the party rule that makes disadvantaging voters of color for parti- — including as a registered voter, employee, consultant, san gain illegal, this type of discrimination will continue or attorney — within the previous five years. That will and grow. minimize the risk of the Senate confirming a “wolf in The For the People Act offers bold and comprehensive sheep’s clothing” — i.e., someone trying to disguise their solutions to the problem of gerrymandering. It requires true partisan leanings.121 It also creates a new, bipartisan states to use independent redistricting commissions to vetting process for nominees. And it provides for more draw congressional maps and imposes a uniform set of robust judicial oversight of the enforcement process. rules for how districts should be drawn, expressly outlaw- Ending the ability of commissioners to remain indefinitely ing partisan gerrymandering and prioritizing criteria like past the expiration of their terms will also be a safeguard keeping geographically concentrated communities with against excessive partisanship, since holdover commis- shared interests (often referred to as “communities of sioners are more subject to pressure from the president interest”) together.127 Depending on when the For the and Congress, who have the power to replace them at any People Act is passed, these reforms could be phased in, time.122 with the ban on partisan gerrymandering and require- These measures provide significantly more formal ment for uniform map-drawing rules becoming effective protection than exists under current law. They are part of immediately. In this case, the independent commission an overall package of sensible reforms that would help requirement would take effect later if there is not enough 11 Brennan Center for Justice Why Congress Must Pass the ‘For the People Act’
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