In the days and weeks after the 2020 presidential election, outright lies peddled on the national stage about the validity and security of state-administered elections proliferated. Politicians and political commentators spread and amplified falsehood after falsehood, baselessly alleging that the election was stolen through widespread fraud simply because their candidate of choice lost. Despite the fact that these allegations were proven false time and time again, and rejected by scores of state and federal courts, growing segments of the population became adherents to this “Big Lie.” This culminated in the devastating and unprecedented January 6 attacks on our Capitol that attempted to prevent a duly-elected president from assuming office.

One of the lasting threats galvanized by the “Big Lie” is election denialism — baselessly casting doubt on or refusing to accept the outcome of free, fair, and secure elections. In the face of ample evidence of the legitimacy of the 2020 election outcome, election deniers continue to try to undermine faith in our electoral process and democracy through baseless allegations of election fraud for personal and political gain. Alarmingly, many extreme election deniers secured candidacies for key state and federal positions that would give them direct control or influence over election administration and policy.

It became clear as we approached the 2022 midterm elections that democracy itself — in addition to so many of our civil liberties — was at stake and on the ballot. Nearly 200 candidates on the ballot outright denied the 2020 presidential results through rhetoric or actions, and many more cast doubts on the 2020 election results. This included U.S. Senate candidates in Arizona and Nevada; U.S. House candidates in almost every state; gubernatorial candidates in Pennsylvania, Michigan, and Arizona; and secretary of state candidates in Arizona, Michigan, and Nevada, just to name a few.

Now, with most of the results of the midterm elections in, there is no doubt that the American people took firm stances against election denialism and voted to protect our democracy in the most vital races.

Election deniers that vied to be the next secretary of state — a position that involves directly overseeing state and local elections — lost their races in key battleground states, including in Arizona, Minnesota, and Nevada. The ACLU and our state affiliates made a substantial investment in educating voters about the vital role of secretaries of state and where candidates stood on protecting voting rights and democracy.

Two of the most fervent and vocal election deniers running for governor lost their races in Arizona and Pennsylvania. Pennsylvania is especially important because its governor appoints the secretary of state.

Although this election season was an important step towards restoring democracy, the fight is far from over. While some of the most extreme election deniers failed in vital competitive races, many election deniers were elected, particularly to the U.S. House of Representatives and statehouses around the country. As we turn our focus toward the 2024 elections and beyond, Congress must enact bipartisan reforms to the Electoral Count Act before this Congress ends to ensure that electoral votes tallied by Congress accurately reflect each state’s popular vote for president. And we must continue to fight for federal voting rights legislation to address voter suppression efforts, fully restore the Voting Rights Act of 1965, and expand access to the ballot.

American Civil Liberties Union

ACLU Comment on House Vote of the Electoral Count Act

Moreover, as state legislative sessions approach, we expect to see continued state-level efforts to interfere with free and fair elections and restrict access to the ballot box. We have seen this before: In 2021 alone, over 400 bills with voter suppression provisions were introduced in states around the country. These suppression efforts included restricting vote by mail, limiting early voting, making it more difficult to register to vote, implementing stricter voter ID requirements, enacting problematic voter purge rules, making it harder for voters with disabilities to cast a ballot, and threatening election officials and voters with new or increased criminal penalties.

Just this year, at least seven states enacted 10 laws to make voting more difficult by creating new hurdles to voting by mail (including limiting drop boxes and permanent absentee voting) and making it more difficult to register to vote (including through documentary proof of citizen requirements and limiting Election Day registration). Additionally, at least 12 laws that jeopardize the nonpartisan nature of elections or aim to intimidate election officials and voters with new civil or criminal penalties were enacted in 2022.

While we continue to fight back against attacks on voting rights and the integrity of our elections, we are doubling down on our proactive efforts to increase access to the ballot box and safeguard our democracy. In states such as New Mexico, we will build on progress made this session to push for comprehensive voting rights legislation that restores the voting rights of people convicted of felonies and makes it easier for Indigenous voters to exercise their right to vote.

In Connecticut, following the success of a ballot measure that removed a constitutional restriction on early in-person voting, the legislature has an opportunity to enact strong, accessible early in-person voting legislation. In Michigan, we will build on this midterm’s electoral successes by working to expand Election Day registration locations, automatic voter registration opportunities, and youth voting rights. We will also advocate for the adoption of the National Popular Vote Compact in states that have yet to enact it to move us closer to our ideal of one person, one vote in presidential elections, and we will advocate for the few remaining states that do not utilize voting machines with paper trails for all elections to do so.

Voting rights and protecting our democracy has always been a top priority for the ACLU. Our ACLU affiliates and our millions of supporters stand ready to continue this fight. We invite you to join us in upholding our democracy and ensuring that each and every voice — and vote — counts.

Twenty years ago, President George W. Bush signed legislation authorizing the largest reorganization of the federal government in more than half a century — piecing 22 offices from five departments into one enormous bureaucracy: the Department of Homeland Security (DHS).

In a paper published this week, we set out 15 reforms to DHS for the Biden administration and Congress to consider. We call for important fixes to the way DHS operates–but its problems run deep, and this moment requires a serious reckoning, which includes a fundamental restructuring.

From the beginning, creating DHS was a bad idea — and many of the people who helped make it happen had misgivings. When Democratic Senator Joe Lieberman proposed it, White House conservatives reportedly balked because it would mean a vast new federal bureaucracy. But President Bush reportedly decided it was “politically expedient” to sign the bill. So Congress and the White House essentially wrote a blank check –one of many that spawned a post-9/11 national security state that threatened to put the country on a permanent war-time footing — and wrongly treated the “homeland” as if it was under continuous, existential threat.

Into the new agency went components of immigration, intelligence-gathering and disaster management; DHS also swallowed the Coast Guard and the Secret Service. “The process for deciding which existing agencies would be moved to DHS, and which ones would stay in other departments, was haphazard at best,” wrote journalist Dara Lind. A former high-level DHS official likened it to a “shotgun marriage” among agencies “some of whom still don’t recognize the department as a department.” The result was poor management and accountability, even as the agency’s budget and staffing continued to balloon.

The sprawling agency was intended to be united around a mandate to “protect the American homeland” — a framing that begs the question, protect from whom? The answer became clear over the last two decades: Activists and peaceful protestors, immigrants with deep community and family ties, people seeking refuge in this country, non-citizens encountered on the high seas, anyone going through the airport. In truth: Potentially anyone.

This overbroad and elastic mandate was always a danger to civil liberties. Back in 2002, we warned that DHS would reach into every nook and cranny of our lives and liberty. We called the initial blueprints for the agency constitutionally bankrupt.

Border Patrol agents with wooden batons stand by the Hatfield Federal Courthouse in Portland, Oregon as demonstrators protest against federal law enforcement presence.

And in many ways, our fears have been realized. “DHS’s overbroad mandate and unchecked powers have turned it into a tinderbox, now ignited by a president willing to trample on the constitutional limits of presidential powers,” ACLU Executive Director Anthony Romero wrote in August 2020. In July, the Trump administration had sent DHS personnel to racial justice protests across the country — as we collectively reckoned with the killing of George Floyd and our nation’s history of police brutality and racism.

Many of us remember the startling news reports from that summer: DHS agents beat demonstrators, grabbed individuals and forced them into unmarked vans, and unlawfully arrested dozens.

“If there is one thing we have learned from the authoritarianism on display in Portland, it’s that we have to remove the loaded weapon that sits on the proverbial coffee table in the Oval Office,” our Romero warned. We called for the dismantling of the department into its component parts and for a reduction of its budget to “allow for more effective oversight, accountability and public transparency” and ensure “the spun-off agencies will have clearer missions and more limited functions.”

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For many observers, DHS attacks on protestors were the tip of the iceberg — and not far below the water’s surface was the recent horror of DHS separating parents from their children at the border (some of those children are still missing); the cruelty of DHS claiming legal authority to deny soap, toothbrushes, and sleep to children in its care; and the blatant xenophobia and racism of the Muslim and African travel bans.

The Biden administration has shifted away from the Trump administration’s use of DHS to police protests and abandoned several abusive programs. But in too many ways, DHS remains on course to continue imperiling civil liberties. As the Biden administration turns from the midterm elections to its agenda for the next two years, it should prioritize meaningful reforms that do not require congressional action, including:

Limiting immigration enforcement operations in U.S. communities:

The creation of DHS brought components of the Immigration and Naturalization Service into the fold of a national security-driven agency, explicitly linking immigration enforcement with countering terrorism. Subsequently, funding for immigration enforcement soared — driven by a misplaced security mandate, rather than documented need. Driven by this new excess funding, ICE developed the capacity to reach into communities across the nation — in large part by tapping state and local law enforcement agencies to assist in deportations.

As a result, millions of people across the nation live in heightened fear that an encounter with local police could lead to their deportation or the deportation of loved ones — and the separation of their families.

DHS should limit Immigration Customs and Enforcement’s (ICE) ability to tap state and local law enforcement agencies to assist in deportations, a practice that leads to racial profiling and harassment of immigrant communities, by ending the 287(g) program. It can start with the 54 law enforcement agencies with egregious civil rights records that we identified last spring.

Ending ICE’s for-profit immigration detention:

As DHS grew, detention of immigrants exploded — from an average of 19,000 people detained on a given day in 2001 to 57,000 people at its peak during the Trump administration. It’s been a boon to private prison giants CoreCivic and GEO Group, which received a combined $4.2 billion in revenue in 2022. Their contracts with ICE have enabled them to project growth to their investors despite President Biden’s 2021 executive order phasing out private prison contracts with the Justice Department.

Mass immigrant detention is unjust and unnecessary. Most individuals in ICE detention are locked up pending adjudication of their civil immigration cases, which means they have not been ordered deported and in fact very well may have the legal right to remain in the United States. Many languish in detention for months and years for no reason, only to win their cases. In detention, people suffer medical neglect, sexual assault, dangerously unsanitary conditions, beatings, and retaliation when they protest.

President Biden should build on his 2021 executive order on private prison contracts by ending for-profit immigrant detention, releasing detained people, and supporting community-based alternatives that enable immigrants to navigate the immigration system and fairly make their case for protection from deportation.

Hold CBP accountable:

CBP has been at the heart of some of the most troubling abuses of recent years, from family separation to holding families and children in outdoor cages to keeping unaccompanied children in inhumane conditions. CBP officers almost never face consequences for their actions.

Addressing impunity within the agency must start with DHS taking steps to bolster the role and authority of the CBP Office of Professional Responsibility and DHS Office for Civil Rights and Civil Liberties. DHS should require both entities to publicly report the outcomes of their investigations and recommendations — a reform members of Congress have proposed. The agency should also ensure all internal policies are made public and available for public scrutiny and congressional oversight. DHS should update use of force and vehicle pursuit policies to align them with professional best practices, better protect people from deadly encounters, and improve accountability.

Issuing meaningful and comprehensive anti-discrimination policies:

Right now, DHS’s patchwork of anti-discrimination policies actually permit discrimination. DHS has the chance to explicitly prohibit biased profiling based on actual or perceived race, ethnicity, religion, national origin and nationality, sexual orientation, disability and gender (including gender identity and expression), without any exceptions.

Congress also needs to act:

Despite reaching a tipping point of public concern, DHS remains mostly intact. DHS still oversees more than 62,000 federal law enforcement officers, by far the largest of any single federal agency. In many respects, the agency is too big to succeed. Its sprawling nature and entrenched systems, practices, and culture make meaningful oversight increasingly difficult. Just two components, ICE and CBP, received 86 percent more in federal funding than the Federal Bureau of Investigation; Bureau of Alcohol, Tobacco, Firearms and Explosives; and Drug Enforcement Agency combined last year.

Yet DHS keeps expanding. “They keep making the case for more money from Congress by continually saying that they’re failing at their mission,” the former head of the Immigration and Naturalization Service Doris Meissner said in 2020. “And Congress keeps pouring more and more money in.”

Using its oversight and appropriations authorities, Congress should use this moment to assess and reform DHS holistically — examining its chronic waste and fraud, the profiteering by private prison companies and other DHS contractors, the negative influence of DHS on state and local law enforcement agencies and grantees, problems at the DHS Office of Inspector General and other internal watchdogs, and susceptibility to politicization and weaponization against domestic dissent.

Twenty years later, it’s past time to seriously reconsider DHS. Its abusive practices aren’t just antithetical to our values — they are a waste of taxpayer dollars and a distraction from serious problems facing people in our country.