News & Commentary

Across the country, over 5 million people who are of voting age cannot vote because of felony disenfranchisement laws, including one in five Black Americans. These laws are a relic of the Jim Crow era, and were intentionally designed to suppress the vote — particularly the Black vote — by limiting the impact of the 13th, 14th, and 15th Amendments. This week, Demetrius Jifunza, Lewis Conway, and Jennifer Taylor join us on At the Polls to share how these laws have impacted them personally after incarceration, and how states are fighting back. Listen to the podcast to learn more.

This year, ensuring every mail-in ballot is counted is more important than ever. While the share of voters casting ballots by mail has grown steadily in recent years, the spread of the COVID-19 pandemic triggered a surge in mail-in voting during primaries that has continued in the lead-up to Election Day. Already, 90.7 million absentee ballots have been requested or sent to voters in 50 states and the District of Columbia. Critically, a growing number of people of color plan to vote by mail rather than in-person in this election.  Anticipating this unprecedented surge in absentee ballots, the ACLU Analytics team generated estimates of absentee voting volume by race and candidate support by vote method in every county in the battleground states of Michigan, Wisconsin, Pennsylvania, and Georgia. The team combined data gathered by a nationwide representative tracking survey conducted by YouGov with turnout modeling based on updated in-cycle ballot data to construct estimates through statistical modeling. Our findings identify which counties potentially face the largest racial representation gap — that is, if the absentee ballot count is not completed, they will cause the biggest disenfranchisement of voters of color. What happens in these counties may well change the course and outcome of the election. Across all four states, we found that the key geographies to watch will be the greater metro areas with large populations of people of color, such as Detroit, Milwaukee, Madison, Philadelphia, Pittsburgh, and Atlanta. Failing to fully count the absentee votes in the counties that are home to these metro areas would mean disregarding between 32.9 percent (in Gwinnett County, Georgia) and 61.4 percent (in Washtenaw County, Michigan) of the votes of people of color.  While any call about the outcome of the election before many ballots are counted is improper,  the fact that Michigan, Wisconsin, and Pennsylvania don’t begin processing ballots until Election Day or the day before increases the odds of confusing, unfounded, and premature victory calls before all ballots have been counted. Further, Georgia has the largest gap in vote-by-mail usage by race. While ballot processing can happen earlier, a time crunch and election staff shortages mean a quick count is not assured.  Attempts to suppress the by-mail vote and the voices of voters of color — whether through delays, ballot rejections, or outright interference with the full count — can absolutely change the outcomes of the election this year. We must keep an eagle eye on the counties identified in our report and make sure the mail-in vote is counted completely and accurately. Mishandling or miscounting ballots in these counties could perpetuate the historical disenfranchisement of voters of color with which we are all too familiar.  In spite of past elections that may have primed voters to expect a winner to be declared the night of the election, it’s vital for us all to remember that the official winner is never truly known on election night. In every election, the results called on election night are based on projections of unofficial tallies. Sufficient results to even make those projections may take days if not weeks, and for the sake of accuracy, that’s a good thing. This year, discounting the mail-in vote would disenfranchise voters of color and distort the election outcome. Ensuring that every vote — whether cast by mail, early, or in-person on Election Day — is counted must be the responsibility and priority of election officials everywhere. Pundits and politicians don’t decide the outcome of the election — voters do. 

With less than a week to go, the only thing we can be sure of is that this Election Day will most likely look, feel, and be different than previous years. We are, after all, living through a pandemic, economic crisis, fight for racial justice, and an election season.  If you haven’t planned how you are going to cast your vote or already voted this election, there’s still time. You can find more information here about how to make your voting plan, and learn about the specific guidelines in your state. If you plan to vote by mail, consider dropping off your ballot in-person at a drop box or election office. If you plan to vote in-person, make sure to check the location of your polling place or early vote center. You can also learn about your rights at the polls here.  And just as we’ve been asking our supporters to make a plan to vote, we at the ACLU have been preparing for months and years for this Election Day: activating volunteers, motivating voters, and fighting for our rights across the country in courts, legislatures, and in the streets.  The ACLU national office and our state affiliates and chapters have been working around the clock to protect and expand your access to the ballot this election season. Through litigation and advocacy, we’ve fought and scored

Tomorrow, the Senate Commerce Committee is holding a hearing entitled “Does Section 230 Enable Big Tech Bad Behavior?” This is just the latest attempt by Congress and the Trump administration to amend, reinterpret, or eliminate Section 230, a key provision of federal law that generally ensures online platforms, including social media, can’t be held liable for the speech and content their users post on these platforms. This law means Yelp can’t be held legally responsible every time one of its users posts a false negative review. The Bed Bug Registry doesn’t have to visit every hotel with a magnifying glass to confirm reports from the public. And Facebook can offer a forum for billions of users to share their thoughts, pictures, memes, and videos freely without having to approve every post before they go up.  Over the summer, Donald Trump issued numerous legislative executive order. The desire on the part of policy makers to do more to create platform accountability is understandable. The ACLU shares that goal, and has long advocated for strong consumer privacy protections at the federal and state level for that very reason. We have also pressed the platforms to provide transparency and meaningful review processes for their content moderation practices. However, we should be wary of proposals that risk harming online expression and be skeptical of focusing on Section 230 as a method of requiring platform accountability.  Section 230 protects people’s ability to create, communicate, and build community online. The ACLU will remain vigilant in ensuring that the internet continues to be a place for self-expression and creation for all. We urge members of Congress to do the same, particularly as they examine proposals to amend Section 230. 

The Supreme Court will soon hear oral arguments in Fulton v. City of Philadelphia, a case about whether governments can be forced to give taxpayer funding to faith-based organizations that provide government services in ways that discriminate against LGBTQ people. If that sentence took you a minute to unravel, and then you couldn’t quite believe you read it right — well, you’re not alone. But unfortunately, it’s true. The Fulton case, which will be heard on Nov. 4, involves the foster care system. Catholic Social Services had a contract from Philadelphia to provide services to foster youth, including screening foster parents. When the city learned CSS insisted on following its own religious screening criteria — which rejected same-sex couples as foster parents — the city didn’t renew its contract. CSS then sued the city. In a similar case, a Protestant organization contracted to provide these services declined to place foster youth with foster parents who were not Protestants, and specifically discriminated against Jewish and Catholic families. Child welfare experts agree that these types of policies lead to more foster youth spending more time in group homes, because the agencies are turning away eligible foster parents. But the implications of the case go far beyond the foster care system. Local, state, and federal governments often give taxpayer dollars to private agencies to provide government services. Many of these private agencies are faith-based. For example, the U.S. State Department contracts with nine organizations to provide resettlement services to refugees, including housing. Six of the nine are faith-based, and five of those six are Christian. Faith-based organizations have government contracts to provide everything from public assistance to substance use treatment, from childcare to shelters. Many of these faith-based organizations do not discriminate and follow best practices in their field to put the needs of those receiving their services first. And that’s how it should be. In the past, the Supreme Court has said that governments can’t deny an organization funding just because the organization is religious. But our opponents in Fulton want something much more than the ability to compete for government funding on equal footing with secular organizations. They want a right for religious organizations to receive government funding to provide government services, even if they selectively refuse to provide those services and discriminate in violation of contract terms and the law. This isn’t religious liberty. It’s government-funded discrimination against the most vulnerable in our society, excused because some want to impose their religious beliefs on others. If the Supreme Court agrees with Catholic Social Services, it is the people who are most marginalized who will suffer. Middle class and wealthy people for the most part get to choose whether and how to engage with faith-based organizations. Working class and poor people do not. The possibilities for harm are sweeping, and there would be no clear stopping point. If you stop by your local church on your way home from work to apply for food stamps, they might stop processing your application as soon as they learn you are pregnant and unmarried. If you are a transgender woman with no housing and no place to stay, you could be turned away from a federally-funded homeless shelter run by a faith-based organization. You could end up sleeping on the street in the freezing cold because of who you are. If you were told you had to complete a drug treatment program funded by the state government to avoid jail time, that program could insist that you embrace Christianity to complete it. You might not be allowed to bring your kids to a taxpayer-funded daycare center because you have a partner who is the same sex as you or a different religion than you. If you are a high school student interested in an after-school program paid for by your local government, you could be rejected because you are Mormon or bisexual. These same communities are under attack in many other ways. For example, the Trump administration recently proposed a regulation designed to allow federally-funded homeless shelters to turn people away because they are transgender, or because they don’t match sex stereotypes. If this proposal were to become law, it would embolden life-threatening discrimination against some of the most vulnerable people in the nation, and lead to more early deaths of trans people. The wrong decision in Fulton could do the same. And because a ruling in Fulton would be based on the constitution, Congress would not be able to fix it. But that’s not a reason to give up — it’s a reason to fight harder for our communities in every way we can, both before the court’s decision and after. We must insist that the court not bend the constitution to force the government to withhold services from some of the most vulnerable in our communities. We must fight for the economic security of LGBTQ people, whether that is through passing the Equality Act, decriminalizing sex work, or providing emergency COVID-19 rent relief. And we must fight for genuine religious liberty for all.

Intersex people make up as much as 1.7 percent of the population and are born with bodies that differ from what others might think of as “typically” male or female. Although being intersex isn’t that rare, this population is widely misunderstood and underrepresented, much like the trans community. Racist colonial erasure, late-stage capitalism, and the medical industrial complex have combined to create implicit assumptions (and often explicit recommendations) with which trans and intersex groups are all-too familiar. We are told, usually by cis and non-intersex people, there’s only one right way to have a body — and that that body should be as normatively close to binary and cis as possible. At interACT: Advocates for Intersex Youth, we are working hard with our partners at Patterson Belknap LLP to prepare our friend-of-the-court brief to the Ninth Circuit Court of Appeals. This follows the district court blocking an Idaho law that targeted trans student athletes and sought to exclude trans and intersex women and girls from school sports. We’re hopeful the judges of the Ninth Circuit recognize why it is so important to stop this law from going into effect. As we prepare our brief, we also approach Intersex Awareness Day on October 26. It is particularly important on this day to recognize why intersex people continue to show up in support of the trans community and in opposition to the unrelenting efforts to deny trans people their rights. Intersex groups and the advocates who work on their behalf joined the effort to oppose HB 500 — Idaho’s law attacking transgender student athletes — not only because many intersex people are also trans (and vice versa), and not only becase the proposed approach to sex testing in sports violates the rights of the intersex community as well.

In March 2018, the city of Philadelphia learned that two of the agencies it contracted with to provide foster care services would not, based on religious objection, accept same-sex couples as foster parents. The city told the agencies their contracts with the city were in jeopardy unless they complied with basic nondiscrimination requirements. While one of the agencies agreed to comply, the other — Catholic Social Services (CSS) — refused. Instead, CSS sued the city, claiming the Constitution gives it the right to opt out of the nondiscrimination requirement. After a lower court and a federal circuit court ruled in the city’s favor, CSS appealed to the Supreme Court. The case, Fulton v City of Philadelphia, has implications not only for the future of foster care, but for the protection of all people from discrimination in the alleged name of religion. Arguments are set for November 4th.  Louise Melling, Deputy Legal Director of the ACLU, joined the podcast this week to discuss what’s at stake in Fulton. “The ACLU has no question about the right of people and organizations to have their beliefs and to practice their beliefs, but it’s to practice your beliefs as long as they don’t hurt others,” said Melling. “And in this context, if Catholic Social Services can practice its beliefs in terms of turning away families because they’re same-sex, it is hurting others.”

When we launched the podcast miniseries, At the Polls, we asked listeners to send us their questions about voting this year. While over 44 million people have already cast their ballots, some questions remain about our rights and options as voters. Listen to the full podcast for your most frequent voter questions, answered.  

In early June, as people around the globe joined in massive protests against the police brutality and racism that killed him, George Floyd was laid to rest at the same Pearland, Texas cemetery where his mother is buried. Led by a horse-drawn carriage containing his body, George Floyd’s grieving family and hundreds of supporters walked slowly from the church to the burial ceremony.    What they did not know is that on the rooftops above them, six teams of snipers were positioned to fire on the crowd of mourners. Manned surveillance aircraft and drones circled in the sky above. And hundreds of local and state police, federal agents including Border Patrol, and National Guard personnel were prepared to descend upon the mourners with extreme violence at even the slightest provocation.     All of this was revealed in police records that the ACLU of Texas obtained earlier this month. The records also show the federal tactical teams were authorized to get “geared up” and “ready to deploy” in view of the crowd in response to as little as “verbal aggressive language” against police officers or throwing empty water bottles. And their instructions permitted rapid escalation, including the use of gas munitions and even “use of deadly force anytime under Ch. 9 Texas Penal Code” against the mourners if the federal agents, police officers, or soldiers believed it necessary.     A Powerpoint briefing deck created in preparation for these deployments describes the “mission” of this multi-agency force as “provid[ing] security for Pearland Police Department, Dawson High School, and the surrounding area with officers stationed for a quick response to rioting and looting.” The only apparent factual basis for these fears were social media posts and messages that a handful of Pearland residents shared with the police department, in many cases expressing their fears that the burial would lead to looting and other property damage.     There is a peculiar kind of racist imagination at play in these messages and the broader discourse on “looting”: the notion that rather than paying their respects to the dead and watching in anguish as George Floyd is lowered into the ground, Black mourners will use the funeral and burial as a reason to fan out across a small Texas town and steal goods from its stores. In this warped framework, any gathering of Black people expressing sadness or anger is a threat to be surveilled, and something that must be neutralized if its participants show the smallest sign of organized resistance. This results in heavily armed police and federal agents being given full permission to wield violence, including deadly violence, against Black people even in times of grief. In this framework, no corner of Black life is free from the threat of police violence — including mourning the people whose lives were taken by that same violence.     This same racist, harmful role for policing — planning violence against Black people in order to deter real or imagined threats to white property ownership — dates back to slavery. Such white fears were common during slavery, because systems of white supremacy require force to maintain themselves. Indeed, the first municipally-funded police department in America was the Charleston City Watch and Guard, a specialized form of slave patrol that monitored Black social gatherings, shut down underground meetings, and sought to block enslaved Black people from organizing resistance to or escape from bondage.    After the end of the Civil War, slavery ended but the mission of police departments and local sheriffs did not change much. Across the former Confederacy, these agencies enforced the Black Codes: an arbitrary set of restrictions that made it hard for newly-freed Black people to organize politically or move to new places in search of better opportunities. Texas was no exception; the Texas Rangers in particular were widely known in the nineteenth century for extrajudicial killings of Mexican Americans and bounty hunting of Black people who escaped from slavery. Meanwhile, their investigation of a 1919 race riot focused less on the Ku Klux Klan than on civil rights groups that they blamed for inciting the riot (at the height of this riot, a mob of nearly 1,000 white people burned down multiple Black-owned houses and killed Black people without law enforcement intervening). It was more than a century after the end of the Civil War, in 1988, that a Black person was first appointed to join the Texas Rangers. And this was not confined to the South: Police in northern cities adopted similar racist practices as more Black people arrived as part of the Great Migration.    Targeting George Floyd’s burial march with snipers and aerial surveillance fits all too comfortably into this history. Not only are the white fears the same, but the weapons and agencies being used to placate those fears and maintain white supremacy are the same. Now, they’re just upgraded with 21st century technology and assisted by Customs and Border Protection (CBP), which has grown to become the country’s largest federal law enforcement agency and claimed broad powers in communities across the nation.    As a result, George Floyd’s family and community cannot even mourn his death at the hands of police without being surveilled by aircraft and drones, under the watch of snipers, federal tactical teams, and National Guard members ready to unleash tear gas and bullets on them at a moment’s notice.     It would be both lazy and wrong to blame this on “bad apples.” Multiple officials at the local, state, and federal levels approved this militarized and potentially lethal response to George Floyd’s burial ceremony. This is about the rot at the core of American policing.    It is time for us to fundamentally rethink the role of policing in American society. While crime has been trending downward for decades and violent crime and property crime have fallen significantly since the early 1990s, over the past four decades, the cost of policing in the United States has almost tripled, resulting in further lethal violence and harm against Black communities. Until we address how white supremacy so easily uses policing as a weapon against Black communities, and until we concretely reduce the role, power, and responsibilities of the police in American life, Black mourners of the next victim of police violence will be forced to wonder whether a sniper on a nearby rooftop is awaiting orders to interrupt their mourning with yet more violence.