Court Dismisses ACLU Complaint That Postage On Mail-In Ballots Constitute A Poll Tax

440px-New_ACLU_Logo_2017.svgI have been critical recently of the torrent of lawsuits filed by the American Civil Liberties Union (ACLU) during the Trump Administration. The over 400 lawsuit represent a shift from the prior careful litigation strategy of the ACLU, which was once as concerned with creating bad precedent as it was creating good precedent.  While the ACLU has had some major wins, it has also lost many of these cases.  The latest loss was a case rejected by U.S. District Judge Amy Totenberg based on a claim that the postage on mail-in ballots constitute a type of poll tax.

In a federal lawsuit filed on behalf of the Black Voters Matter Fund and a DeKalb County voter, the ACLU argued that postage constituted a voting fee outlawed by the 24th Amendment. In the opinion below, Judge Totenberg that, while concerned over any practical barriers to voting, the ACLU could not maintain this claim or secure an order at this late date:

“The fact that any registered voter may vote in Georgia on election day without purchasing a stamp, and without undertaking any ‘extra steps’ besides showing up at the voting precinct and complying with generally applicable election regulations, necessitates a conclusion that stamps are not poll taxes.”

The court noted that it was concerned about the barrier of postage but that “it would benefit the public for the parties to immediately discuss means to reach the goal of eliminating barriers to voting posed by the Covid-19 pandemic.”  That might include parties making postage available or the creation of additional options for delivery of the ballots.

I cannot imagine how a court could rule in favor of such a 24th amendment analogy over the stamp.  I also happen to agree that, if states are going to use mail-in voting, it should use pre-paid postage return envelopes. Thus, I agree with ACLU on the public policy but not the constitutional claim.

In Bush v. Gore, 531 U.S. 98, 104-05 (2000), the Court ruled that “[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. . . .” Yet, this is just one option for voting. The minimal postage cost does not value one person’s vote over another when anyone can vote without the cost.  Moreover, there are inherent costs to voting, even in person. Leaving work or traveling to poll places can present unequal burdens.  The mail-in voting option was designed to expand the choices available to people to vote from in-person voting to absentee voting to mail-in voting.

My concern with the ACLU is that it has abandoned its long political neutrality to appeal to donors demanding more partisan positions and priorities. I am unabashedly part of the “old guard” in the civil liberties community.  I have worked with the ACLU for decades and watched as internal fighting led to the departure of long-standing figures.  Under Executive Director Anthony Romero, the group has become increasingly allied with Democratic and anti-Trump interests.  This includes Romero’s call this week to disband the Department of Homeland Security.  There was a time when the ACLU board and staff would not tolerate such a raw political position for its director. The group prided itself on focusing on defending constitutional rights in court. Romero’s hyperbolic attack on this agency, including his claim that “President Trump has converted DHS into our government’s most notable badge of shame.” The original model of the ACLU was that both conservatives and liberals could support an apolitical, pro-constitution organization that fought for all rights equally. Romero seems intent in converting the group into the legal arm of the “resistance” and replacing its traditional caution in litigation with a sense of total abandon.   That no doubt thrills many wealthy liberal donors but it is the loss of a unique organization that once rallied conservative, liberals, and libertarians to a common article of faith in the Constitution.

There was a time when the ACLU was wonderfully contrarian — beholden to neither party.  The group now appears to be raising money on its role in the resistance to Trump and departing from bright-line positions in favor of due process and other rights.  This includes an abandonment of its long position on free speech in supporting the rights of all groups on the left and right.  The ACLU now equivocates on the protection of free speech for those on the far right.  The clarity of the prior position reflected the core principle of free speech. The ACLU now seems to follow a more nuanced content-based approach (the very type of discrimination on content that it long opposed).

My greatest concern is that the ACLU is being reckless with a saturated bombing approach to litigation. This is an example of a creative proposal that should have been left in a brainstorming session at the ACLU headquarters.

Here is the opinion: Poll Tax opinion

62 thoughts on “Court Dismisses ACLU Complaint That Postage On Mail-In Ballots Constitute A Poll Tax”

  1. Abby D. Phillip: “Trump saying clearly on Fox why he won’t fund USPS: ‘Now they need that money in order to have the post office work so it can take all of these millions and millions of ballots…But if they don’t get those two items that means you can’t have universal mail-in voting…'”
    audio of Trump saying this: https://twitter.com/atrupar/status/1293905691602751488

    Marcy Wheeler: “Used to be there was a Take Care clause that would get someone impeached over confessing that he’s holding seniors’ prescriptions and retirees’ payments hostage to steal an election.”

    1. Trump’s normal M.O.

      Come right out and say it. Benefit from the shock response. Then perform the illegal act in plain sight.

    2. Wow, so knowing how badly he’s doing in the polls and the GOP’s comical fumbling it’s criticisms of Kamala Harris. He’s resorting to literally cheating in plain sight. Maybe people should start sending their ballots thru UPS and FEDEX. They can bill the government for the postage. Those two along with the USPS now limited capacity should still be able to process the expected deluge of votes.

  2. “President Trump says the U.S. Postal Service is incapable of facilitating mail-in voting because it cannot access the emergency funding he is blocking, and made clear that requests for additional aid were nonstarters in coronavirus relief negotiations.”
    https://washingtonpost.com/business/2020/08/12/postal-service-ballots-dejoy/
    He is choosing to harm the country to benefit himself, because he’s worried about being reelected.

    Just as he’s harmed the country in other ways, as through his incompetence/willful neglect/… in dealing with COVID-19.

    He must be voted out.

  3. Supposedly modern Conservatives oppose legaleze and frivolous lawsuits, but so-called Conservatives on the U.S. Supreme Court have been very liberal lately. Some examples: Eminent Domain, which has never been amended through a constitutional amendment, was watered down to include “private projects” not just government projects. Today, the government can seize your land (or property rights) not just for public interstates but to build a shopping center or condos.

  4. I’ve always thought that there should be a poll tax. You should have to show up with I.D. and your previous years tax return and show that you paid at least one dollar in federal taxes. You should be required to have some skin in the game to be allowed to elect people who will be spending others skin.

  5. “the group has become increasingly allied with Democratic and anti-Trump interests.”

    What a shock. JT finally catching up to this? Where has the ACLU been for the last 15 years for conservatives being censored at college campuses?

  6. If a stamp is a poll tax isn’t the use of one’s car to drive to a polling location a tax? A bus trip? Ridiculous, people fought and died to protect such rights. If you can’t manage to get to a poll or buy a stamp I’m not going to feel sorry for your ungrateful, lazy, entitled, complacent self that doesn’t value the freedom you have.
    The ACLU has lost all credibility.

  7. Jonathan Turley and his supporters may want to read “The US Postal Service is not a business…” by Chad Marlow at http://www.ACLU.org. It’s a great article concerning the constitutionality of the postal service and why Congress should help the USPS. From a constitutional point of view the postal service is like the military not a business.

    1. I wish I could just opt out of the post office. I go to my mailbox and most of it goes into the recycling bin and never gets in my home. Once government expense to deliver it, another one to take it away. 2 trucks burning fossil fuels, crowding the road, more waste paper. It is a dinosaur that is barely needed anymore. We ended the pony express when it became obsolete, snail mail is due to be retired.

      1. “Once government expense to deliver it”

        Taxes don’t pay for the USPS. They’re self-funded by the sale of products (stamps, boxes, …) and services.

        “snail mail is due to be retired”

        Yeah, all the seniors who rely on the mail to deliver their medications are absolutely going to agree with you. They’ll *love* having to pay more for UPS or Fedex. And all of the people who live in rural areas that UPS and Fedex don’t deliver to will just be stuck. Fine by you if they’re screwed. …

        After all, what matters is whether you personally feel it’s needed, not what’s best for Americans as a whole.

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