Your weekly source for analysis and insight from experts at the Brennan Center for Justice at NYU School of Law

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The Briefing

What does Donald Trump’s acquittal mean for the Constitution and our democracy?

First, impeachments may have lost their sting. At the Constitutional Convention, Elbridge Gerry described how impeachments would discipline errant officeholders: “A good magistrate will not fear them. A bad one ought to be kept in fear of them.” That fear among future presidents is harder to imagine now.

Second, how the Senate acted will deepen the sense that Congress has stopped acting as a coequal branch of government as opposed to a bunch of party apparatchiks. Trump’s team made absurd constitutional arguments, claiming in effect that the president was above the law. The Senate effectively endorsed this maximalist view. The restraints on the Imperial Presidency built a half century ago after Watergate and Vietnam, eroded over time, now is rubble. The issue of executive power and its abuse will be a central public topic in years to come.

But time and again, sweeping reform has followed rampant abuse — although not automatically, and not always. The country is living through another such moment. And once again, it is time to act ([link removed]).

Democracy

What We Learned from Iowa

More than a week has passed since the Iowa caucus debacle, but the systems breakdown urgently reminds us that election officials must be ready to respond when problems arise. In an op-ed ([link removed]) for the Washington Post, the Brennan Center’s Lawrence Norden outlines four things election officials can do to help keep the 2020 election cycle free, fair, and secure.

Beyond botched election reporting and embarrassing election administration glitches, something more sinister was afoot in Iowa. Even before caucus night, partisan operatives and agitators were sowing distrust in the Iowa caucus. This originated with tweets by a conservative activist group claiming several of the state’s counties had more voters on their rolls than eligible voters in the county. Their specific claim was quickly debunked, but it continued to proliferate on social media.

“This is a grimly familiar playbook from the Trump administration and its allies, and we are likely just seeing the opening salvo in a campaign to undermine trust in the results of the 2020 election if it doesn’t go his way,” write the Brennan Center’s Wendy Weiser and Max Feldman. // READ MORE ([link removed])

A Flurry of Activity Around Voting Laws

In state capitols, a stream of newly introduced bills would make it harder or easier to vote. In 29 states, lawmakers have introduced a total of 188 bills that would expand access to the ballot. Typically, they eased registration or reduced restrictions on absentee voting.

But it isn’t all good news. In 15 states, there are 35 bills would restrict access to the vote. Of note: several new proposed strict voter ID requirements. We also continue to see proposed curbs on who may help voters, and aggressive penalties for election-related offenses. // READ MORE ([link removed])

How to Design Better Ballots

Remember the Florida 2000 recount? Well-intentioned officials designed a ballot that inadvertently led thousands to vote for the wrong candidate. A presidency was decided. Bad ballot design still has cost hundreds of thousands of votes in recent elections. It’s an avoidable problem. Ahead of the 2020 election, a new Brennan Center analysis highlights recent examples of skilled and badly designed ballots.

“With this year’s elections projected to have record turnout and tight margins across the nation, bad design should not be a cause of doubt about their fairness and accuracy,” write the Brennan Center’s Andrea Córdova McCadney and Lawrence Norden. // READ MORE ([link removed])

Rescuing Regulation

Some Supreme Court justices have suggested that if given the chance, they would take the radical step of eliminating Congress’ ability to delegate substantive policymaking roles to federal agencies. This could quickly become an environmental and public health crisis.

For most of a century, Congress has set policy goals and then delegated some of the details to expert agencies. That makes sense, given the technical nuance often required. Meanwhile, Congress’ own expert agencies have atrophied. “The time is now for Congress to build out its own expert capacity so that it can oversee — and, if necessary, try to compensate for the loss of — the highly technical expert decision-making that executive agencies have long performed,” writes the Brennan Center’s Martha Kinsella. // READ MORE ([link removed])

The Wrong Way to Reform Judicial Elections

The role of judges in our democracy is to serve as an independent check on the political branches. But in states around the country, judicial independence has been under attack. Last year, at least 25 states considered legislation that would have politicized courts or weakened the judiciary. The latest example comes from Pennsylvania, where state lawmakers are considering legislation that would change the way appellate judges join or stay on the bench.

“Pennsylvania’s method of choosing judges is in clear need of reform,” writes the Brennan Center’s Patrick Berry. “But any changes to how judges are selected must be designed to protect judicial independence and avoid political and special interest pressure on the state’s judiciary.” // READ MORE ([link removed])

Constitution

Building on Bigotry

President Trump has broadened what started as a “Muslim ban,” blocking immigration from six more countries: Nigeria, Myanmar, Eritrea, Kyrgyzstan, Sudan, and Tanzania. As a result, more than half a billion people — and a quarter of Africa’s population — are now barred from seeking permanent residency in the United States.

These bans selectively shut off immigration from countries Donald Trump doesn’t like, and in the process, they prevent Americans from bringing their spouses and children to come live with them in the United States. They are in direct conflict with the main purposes of American immigration law, which Congress passed the existing framework for in 1965.

To reassert its authority, Congress needs to pass the No Ban Act, which would repeal the restrictions and make it harder for the president to take similar biased actions in the future. The House Judiciary Committee is set to consider the bill Wednesday. // READ MORE ([link removed])

News

- Theodore R. Johnson on the Trump administration’s outreach to Black Voters // WASHINGTON POST ([link removed])

- Lawrence Norden on the technology failure at the Iowa caucus // NBC NEWS ([link removed])

- Yurij Rudensky on redistricting setbacks in Missouri // ST. LOUIS POST-DISPATCH ([link removed])

Have an issue you'd like us to cover? Feedback on this newsletter? Email us at [email protected]
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The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary defend – our country’s systems of democracy and justice.

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