I 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.