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Guns and Voting: How to Protect Elections after Bruen

September 18, 2023

With more guns and more political polarization and violence, states need strong laws to limit risk. In Bruen, the Supreme Court recognized that prohibitions on guns in "sensitive places" — and specifically in "polling places" — were "presumptively lawful." Yet today only 12 states and Washington, DC, prohibit both open and concealed carry of firearms at poll sites. Ironically, the states with the strongest gun regulations — which had restricted the ability to carry guns in public generally, rather than prohibiting guns in particular locations — were made most vulnerable in the wake of Bruen. In fact, only one of the six states that had their laws struck down by the decision specifically prohibited guns in polling places at the time of the decision.Now these states that once had strong general gun laws must scramble to enact new protections for elections. Although some states have banned guns at polling placessince Bruen, there is far more work to do.This report evaluates the new risks that gun violence poses for U.S. elections and proposes policy solutions to limit those risks. Solutions include prohibitions on firearms wherever voting or election administration occurs — at or near polling places, ballot drop boxes, election offices, and ballot counting facilities. In addition, states need stronger laws preventing intimidation of voters, election officials, election workers, and anyone else facilitating voting, with express recognition of the role that guns play in intimidation.Brennan Center for Justice: Law Center to Prevent Gun Violence: 

Supreme Court Term Limits: A Path to a More Accountable High Court

June 20, 2023

Today's Supreme Court has assumed a degree of power and importance that would have been unrecognizable in the founding era. A recent cascade of ethics scandals has laid bare a system in which justices wield tremendous power for decades with little accountability while the Court's rulings are increasingly unmoored from democratic values and the principle of judicial restraint. For all these reasons, there are growing calls for reform. One of the most popular options would also be among the most transformative: establishing 18-year terms and regularized appointments for justices.This paper explains how such a reform would work, why it would bolster the Court's legitimacy, and how to transition from the current system. It also discusses how the core elements of this reform could be adopted by statute, consistent with the Constitution, by establishing the role of "senior justice."

Securing the 2024 Election: Recommendations for Federal, State, and Local Officials

April 27, 2023

What are the gravest threats to the security and integrity of U.S. elections? Over the past decade, the answer to that question has evolved. In addition to foreign cyberattacks and influence campaigns, dangers such as intimidation of election workers and conspiracy theorists assuming election administration positions now put U.S. democracy at risk. In the lead-up to the next presidential election, the United States must adjust to this changed landscape and ensure that the democratic process is protected when the nation goes to the polls.

Democracy Depends On All of Us: Annual Report 2022

April 25, 2023

In 2022 election deniers lost. But the fight goes on.The forces of American democracy rallied in 2022. For years we saw the rising authoritarian movement, rooted in white supremacy, that threatened our basic values, part of a conflict with increasingly visible global dimensions. Now there is a democracy movement to counter it — strong, wide, diverse, and growing. In this great effort, the Brennan Center plays a singular, central role.

A New Vision for Domestic Intelligence: Fixing Overbroad Mandates and Flimsy Safeguards

March 30, 2023

Built from 22 agencies with disparate missions, the Department of Homeland Security (DHS) routinely gathers intelligence to guide its strategic and operational activities. But in the two decades since its inception, scores of incidents have undermined the legitimacy of its intelligence programs.Congress and the department's own general counsel and inspector general, among others, have shown that DHS intelligence officers abused their counterterrorism authorities to suppress racial justice protests after the murder of George Floyd at the hands of a police officer. In support of the Trump administration's goals to undermine the Black Lives Matter movement and spin an election-season story of anarchy, DHS sent intelligence officers to Portland, Oregon, to surveil protestors, create dossiers on dissidents, and enable U.S. Border Patrol special forces to whisk demonstrators away in unmarked vehicles. DHS's Office of Intelligence and Analysis (I&A) also surveilled prominent national security journalists and issued intelligence reports on their tweets. This political targeting was enabled by expansive intelligence authorities and a lack of meaningful checks on discretion.The time has come to rethink DHS intelligence operations and build safeguards that permit the department to provide its leadership with the information it needs while protecting civil rights and civil liberties. This report charts a course for doing so. It focuses initially on I&A, explaining how the office has veered from its counterterrorism mission into tracking social and political movements, often distributing shoddy information and analysis. It then turns to other parts of DHS's intelligence infrastructure, highlighting significant operations run by CBP and ICE as well as situational awareness initiatives, which have often targeted Americans exercising their First Amendment rights. Finally, it explains why the departmental oversight bodies created by Congress to protect civil rights and liberties consistently fail to prevent intelligence abuses at DHS.

A Proposal to Reduce Unnecessary Incarceration: Introducing the Public Safety and Prison Reduction Act

March 14, 2023

For decades, the federal government used its grant-making power to spur states to incarcerate more people and to impose longer sentences. It should now use that power to reverse course.

Fighting for Dignity: Incarcerated Women Speak

October 20, 2022

Trauma is a persistent feature in the lives of incarcerated women. Seven of them describe how they cope in the face of inhumane conditions and what truly rehabilitative institutions would provide.

Democracy Can't Wait: Annual Report 2021

September 30, 2022

The Brennan Center for Justice is an independent, nonpartisan law and policy organization that works to reform, revitalize, and when necessary, defend our country's systems of democracy and justice.   Today, we are in a great fight for the future of constitutional democracy in the United States. We are committed to the rule of law. We work to craft and advance a transformative reform agenda — solutions that aim to make American democracy work for all.

Improving the Census Legal and Policy Reforms for a More Accurate, Equitable, and Legitimate Count

September 13, 2022

The census is a cornerstone of American democracy. The results of this constitutionally required, once-a-decade count of every person living in the United States dictate how seats in the House of Representatives are divided among the states, how state and local governments draw electoral districts, and how more than $1.5 trillion annually in federal funds is distributed for essential services such as health care, food assistance, and education. At its best, the census offers an authentic picture of who we are as a diverse and growing nation.The 2020 census struggled. It faced a barrage of obstacles, from executive interference to chronic underfunding to the Covid-19 pandemic. In the face of these challenges, it ultimately failed to reach 18.8 million people — more than 5 percent of the country's population. What's more, the census once again disproportionately undercounted people of color, with the Latino undercount rate more than tripling from the prior decade. And multiple states were undercounted by significant margins. These inaccuracies compromise the census's ability to fairly distribute political power and federal funding both across states and across communities, undercutting the democratic promise of our political system. Meanwhile, overall census response rates remain stuck in a rut, costs are rising, and the bureau's reliance on labor-intensive door-to-door outreach is showing its limits. The census is too critical to continue in this precarious state.This paper sets forth a blueprint for reforming the law and policy of the decennial population count. Our goal is to make future censuses more accurate, equitable, and legitimate. An accurate census correctly captures the number and demographic characteristics of all people residing in the country. An equitable census is designed, funded, and run to count all groups precisely and to distribute political power and economic support commensurate with each community's fair share. A legitimate census — one that is scientifically rigorous and democratically accountable and boasts universal participation — warrants and inspires widespread trust. Legitimacy and accuracy require equity; an equitable census is free from the long-running tendency to undercount Black, Latino, and Native American communities in comparison with white ones, inspiring confidence in its fundamental fairness.

Stronger Rules Against Bias: A Proposal for a New DHS Nondiscrimination Policy

September 9, 2022

The Department of Homeland Security (DHS) has a problem with discriminatory profiling. Too often, it relies on religious, ethnic, or racial stereotypes in carrying out its expansive counterterrorism mandate, as well as its other functions. DHS agents question Muslim travelers about their religious views when they enter the United States and single out Latino communities for detention and deportation.  They detain Americans at the border simply based on their country of birth.  Officers charged with identifying potentially risky travelers by looking for suspicious behaviors have said that the scientifically discredited program they used amounted to a back door for racial profiling. The administration has disavowed anti-extremism programs that wrongly assumed that Muslims are predisposed to terrorism, and yet DHS continues to fund similar initiatives.DHS must strengthen its nondiscrimination rules, ensure that those rules cover all its activities, and develop effective accountability mechanisms. Building on our recommendations in A Course Correction for Homeland Security: Curbing Counterterrorism Abuses, this report proposes a model policy that would close current gaps. The secretary of homeland security has the authority to adopt such a policy and should waste no time in doing so.

Patterns in the Introduction and Passage of Restrictive Voting Bills are Best Explained by Race

August 3, 2022

Over the past 18 months, there has been an unprecedented wave of anti-voter legislation introduced and passed across the country. In 2021, at least one bill with a provision restricting access to voting was introduced in the legislature of every state except Vermont. By early May of this year, nearly 400 restrictive bills had been introduced in legislatures nationwide.Legislators and researchers have given different explanations for this wave. The mostly Republican lawmakers supporting these bills often argue that the new provisions are necessary to protect election integrity, despite the absence of widespread fraud in American elections. Commentators argue that Republican legislators are pushing to change election laws to guarantee political advantages for their party. Some past research supports this argument, demonstrating that certain restrictive voting policies are most likely to be adopted in electorally competitive states controlled by Republicans. Other scholarship shows that states pass restrictive voting laws when Americans of color have strong and growing political power.The Brennan Center has developed a unique data set for testing these explanations. Specifically, we tracked every restrictive voting provision introduced in every state legislature in 2021 (as we do every year) and used Legiscan data to identify the sponsors of these bills. We then examine which district-level characteristics are most correlated with whether a lawmaker sponsored a restrictive voting bill.We tested several factors, including the partisan and racial makeup of legislative districts and states as well as the racial opinions of constituents. Our research shows that racial factors were powerful predictors of sponsorship. This is consistent with the theory that "racial backlash" — a theory describing how white Americans respond to a perceived erosion of power and status by undermining the political opportunities of minorities — is driving this surge of restrictive legislation. To be sure, the data also confirm that partisanship is a powerful predictor of sponsorship. But even after accounting for racially polarized voting in the United States, we show that racial demographics are a powerful factor independent of party in determining where restrictive voting laws are introduced and passed.

Information Gaps and Misinformation in the 2022 Elections

August 2, 2022

The problem of election misinformation is vast. Part of the problem occurs when there is high demand for information about a topic, but the supply of accurate and reliable information is inadequate to meet that demand. The resulting information gap creates opportunities for misinformation to emerge and spread.One major election information gap developed in 2020, when the Covid-19 pandemic drove many states to expand access to voting by mail. Inadequate public knowledge about the process left room for disinformation mongers to spread false claims that mail voting would lead to widespread fraud. Election officials could not fill information gaps with accurate information in time. As is now well known, no less than former President Trump promoted these false claims, among others, to deny the 2020 presidential election results and provoke the January 6, 2021, attack on the U.S. Capitol.In 2022, false narratives about a stolen 2020 election persist, even as an unprecedented spate of restrictive voting law changes across the country has created fresh information gaps and, thus, fresh opportunities for misinformation. Since 2020, at least 18 states have shrunk voting access, often in ways that dramatically alter procedures voters might remember from the past. Meanwhile, lies and vitriol about the 2020 election have affected perceptions of election administration in ways that complicate work to defend against misinformation.This paper identifies some of the most significant information gaps around elections in 2022 and new developments in elections oversight that will make it harder to guard against misinformation. Ultimately, it recommends strategies that election officials, journalists, social media companies, civic groups, and individuals can and should use to prevent misinformation from filling gaps in public knowledge. Lessons from other subjects, such as Covid-19 vaccine ingredients and technologies, show how timely responses and proactive "prebunking" with accurate information help to mitigate misinformation.