The Brennan Center

  • April 15, 2014
    Guest Post

    by Nicole Austin-Hillery, Director and Counsel-Washington Office, The Brennan Center for Justice

    The right to vote is at the heart of our American Democracy. Political participation by citizens is the great equalizer – it is the one thing that allows all Americans, no matter how powerful or weak, to make decisions about who will lead and who will help to advance their interests and protect their families. On April 10, Congress took an important step towards ensuring that this crucial right becomes available to even more Americans. Sen. Ben Cardin (D-Md.) and Rep. John Conyers (D-Mich.) introduced the bi-cameral Democracy Restoration Act (DRA). This important legislation would restore the right to vote in federal elections to the previously incarcerated immediately after their incarceration period is complete. Doing so would enable these individuals to resume the right and responsibility inherent in our role as Americans – asserting our voice through the ballot box.

    The DRA was first introduced in 2009 by former Sen. Russell Feingold. Previously, the bill received strong support, but never quite enough to become a reality. This time, however, is different. There is an enthusiastic and bi-partisan movement underway to reform those parts of our criminal justice system that do not work.  We can see this at the national as well as the state level:  Congress is considering reforming the federal sentencing structure to make sentences fairer in an effort to help eliminate mass incarceration; the Department of Justice has instituted a "Smart on Crime" initiative that would result in better decision-making by prosecutors; and several states, most notably Kentucky, are considering legislation that would restore voting rights to the formerly incarcerated in its state prisons. Other states have also made significant changes to their laws to open up the franchise to the formerly incarcerated, most notably in Delaware, and Virginia – a state that had previously been cited as having one of the most draconian felon disfranchisement laws on the books. So the moment to finally restore voting rights to the formerly incarcerated, who have paid their debts for their crimes, is now.

    Unlike other attempts to restore voting rights, the DRA is the most comprehensive effort. Under the legislation, once an individual has completed his or her incarceration period, their right to vote in federal elections will be automatically restored.  Individuals will not be limited because of any ancillary issues related to their incarceration such as outstanding fees and fines or the fact that they have been released from prison but remain on probation. This is a significant feature of the DRA.

  • March 1, 2013

    by Jeremy Leaming

    Following oral argument in Shelby County v. Holder several court-watchers, to the consternation of some, wrote that the Voting Rights Act’s integral enforcement provision, Section 5, looked to be on the chopping block largely based on courtroom theatrics.

    But many of those court-watchers, such as The New York Times’ Adam Liptak, noted that it was indeed risky to make  predications based only on oral argument, while nonetheless pointing out that in 2009 in Northwest Austin Municipal Utility District v. Holder, Chief Justice John Roberts and other members of the high court’s right-wing bloc made it rather clear that Congress should revisit the formula used to determine what states are covered by Section 5.

    As Liptak noted, Congress did not revisit the formula. And what happened during oral argument earlier this week? You had the Court’s right-wing justices grousing over the same things they did in Northwest. So it doesn’t take much of a leap to figure Justice Anthony Kennedy, who asked how much longer must Alabama remain under U.S. “trusteeship” is ready to join Roberts, and Justices Antonin Scalia, Clarence Thomas and Samuel Alito in striking Section 5, by ending the use of the formula. (Section 5 requires states and localities, mostly in the South, to get “preclearance” of any proposed changes to their voting laws and procedures to ensure that they do not have the effect of discriminating against voters. The Constitution’s 14th and 15th Amendments provide Congress the power to take appropriate action to ensure that states do not deprive people of liberty or discriminate against voters because of their race.)

    The Brennan Center’s Myrna Pérez writes that the “arguments themselves do not provide much predictive value,” and that little was discussed during oral argument “over what exactly Congress needed to do differently to have appropriately fulfilled its duties.”

    ACS President Caroline Fredrickson also told TPM’s Sahil Kapur that the “silver lining is ultimately oral arguments are rarely a predictor of outcomes of the case.”

    Yep, lots of folks were predicating Kennedy would save the day for the Obama administration’s landmark health care reform law the Affordable Care Act. And of course we know how that turned out.

    As noted on this blog numerous times, Section 5 is the power behind the Voting Rights Act and Congress has the constitutional authority to combat racial discrimination in voting. Section 5, reauthorized in 2006, has helped prevent states bent on suppressing the votes of minorities from doing so, including Alabama, South Carolina, Texas and Florida. Without Section 5, those states will have great leeway in pursuing schemes to dilute the minority vote.


  • December 19, 2012
    Guest Post

    Diana Kasdan, Counsel, Brennan Center for Justice

    Every senator needs to put “fix the filibuster” at the top of his or her New Year’s Resolution List. Specifically, they need to resolve to pursue serious rules reforms that can curb the exponential rate of obstruction in recent decades. And it must happen on January 3rd. Here are three reasons why:

    1.      Congress is Broken and Senate Obstruction is Part of the Problem

    The 112th Congress has had the lowest output of any since at least World War II. This stems from reasons well beyond divided control of chambers, which defines the current and incoming Congress. Control of the House and Senate was also divided from 1981 to 1987, yet Congress enacted an average of nearly 600 public laws during each two-year period, compared to barely 200 in the current session.

    So what is causing this decline in productivity? One prime culprit is filibuster abuse. As a recent Brennan Center reportconfirms, longstanding procedural rules have become tools of obstruction allowing legislative minorities to impose a veto on nearly every order of Senate business. Even when addressing matters purely within its own control, the Senate is at a virtual standstill. The Senate has passed a record-low 2.8 percent of its own bills. At its peak efficiency in the 1950s, the Senate passed nearly 27 percent of its bills. And, on average, it has taken 188 days for the Senate to confirm a judicial nominee during the current Congress, creating 32 “judicial emergencies.” Only at the end of the congressional term in 1992 and 2010 have there been more judicial emergencies.

  • December 13, 2012

    by Jeremy Leaming

    With Republicans seemingly hell-bent on tossing the country over the so-called fiscal cliff, showing no signs of agreeing to tax hikes on the nation’s superrich, and continuing their strategy of obstructionism polling shows that a majority of Americans support filibuster reform.

    Sen. Minority Leader Mitch McConnell (R-K.Y.) embraced obstructionism during President Obama’s first term, saying his party’s top priority was to ensure Obama did not serve a second one. McConnell, however, is still set on obstructionism and not surprisingly arguing that the Constitution forbids the Senate from altering its procedures by majority vote.

    A bipartisan group of law professors – including former Reagan solicitor general Charles Fried and a former conservative federal judge Michael W. McConnell – in a Dec. 12 letter to senators says McConnell is wrong. (The letter can be read here – thanks to the Brennan Center For Justice).

    “When a newly-elected Congress convenes,” the letter states, “the newly-constituted Senate, like the newly-elected House, can invoke its constitutional rulemaking authority to make changes to the Standing Rules. At that time, a majority of the new Senate can choose to reject or amend an existing rule.”

  • September 18, 2012

    by Jeremy Leaming

    Pennsylvania’s top court has ordered a lower court judge to reconsider whether a preliminary injunction should be entered against the state’s ridiculously rigid voter ID law. Pennsylvania’s voter ID law signed into law by the state’s Republican governor creates significant hurdles for people to vote, especially for some of the state’s most vulnerable. Other states, mostly controlled by conservative policymakers, have also pushed through stringent voter ID requirements.

    In August, a state judge dismissed arguments that the new law, enacted “along purely partisan lines,” as the Philadelphia Inquirer puts it, would hinder the ability of minorities, students, low-income people and the elderly to vote in the forthcoming general election. (A report by The Brennan Center for Justice, which examined the Pa. voter ID law along with similarly onerous ones in other states such as Texas and Wisconsin, found that the process for obtaining voter identifications was so onerous that more than a million people in the studied states could be barred from voting. “These voters can be particularly affected by the significant costs for the documentation required to obtain photo ID. Birth certificates can cost between $8 and $25. By comparison the notorious poll tax – outlawed during the civil rights era cost $10.64 in current dollars,” The Brennan Center stated.)

    The Sept. 18 order from the Pa. Supreme Court first noted that the state’s Constitution declares that “elections must be free and equal and ‘no power, civil, or military, shall at any time interfere to prevent the free exercise of the right of suffrage.’” The high court tossed the case back to the lower court judge with the order to ensure that implementation of the Voter ID law did not unconstitutionally interfere with the right to vote.