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”



    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.

    Trump, who has been railing against mail-in balloting for months, said the cash-strapped agency’s enlarged role in the November election would perpetuate “one of the greatest frauds in history.” Speaking Wednesday at his daily pandemic news briefing, Trump said he would not approve $25 billion in emergency funding for the Postal Service, or $3.5 billion in supplemental funding for election resources, citing prohibitively high costs.

    “They don’t have the money to do the universal mail-in voting. So therefore, they can’t do it, I guess,” Trump said. “Are they going to do it even if they don’t have the money?”

    Trump’s remarks came hours after congressional Democrats intensified calls for more oversight of the agency and the new postmaster general, Louis DeJoy, a major Republican donor and Trump ally.

    The effort comes after DeJoy ushered a wholesale reorganization of agency’s executive ranks, restructured operations and instituted a hiring freeze on top of other cost-cutting measures already being blamed for significant mail backups. Two House Democrats, Rep. Peter A. DeFazio (Ore.) and Rep. Alma Adams (N.C.), called for DeJoy’s removal over the weekend. Meanwhile, Senate Minority Leader Charles E. Schumer (D-N.Y.) said the policies stand in the way of the chamber completing a “Phase IV” coronavirus relief package.

    In recent weeks, the Postal Service has warned states that long-standing classification practices for ballots and other political mailings may not be enough to ensure timely delivery for the November election, exacerbating Democrats’ fears that Trump is using the nation’s mail service to aid his reelection bid.

    Postal officials advised the nation’s secretaries of state to use high-priority first-class postage, which costs 55 cents an item, on election mail rather than the third-class, or bulk, rate of 20 cents typically used.

    USPS General Counsel Thomas Marshall informed state leaders that, depending on their respective deadlines for requesting an absentee ballot and casting a vote by mail, sending election items third class may cause voters to miss crucial cutoff points. Bulk mail delivery takes three to 10 days, according to the Postal Service, while first-class mail delivery takes two to five days.

    But postal workers have long informally treated election mail — including voter registration materials, voter information and ballots — as first-class items, affording them privileges their 20-cent price point ordinarily would not allow.

    Edited from: “Trump Says U S Postal Service Nees Money For Mail-In Voting. But He’ll Keep Blocking Funding”

    The Washington Post, 8/12/20

  2. The problem with postage paid envelopes is that they are not post marked. If a state permits ballots that are postmarked by Election Day and not received by Election Day, they are out of luck.

  3. “New Zealand PM Jacinda Ardern Warns She May Delay Elections over Coronavirus”

    “New Zealand Prime Minister Jacinda Ardern warned on Wednesday that she may choose to delay elections scheduled for September in response to a resurgence of the Wuhan coronavirus.

    “’We’re seeking advice from the Electoral Commission, just so that we make sure we have all options open to us. No decisions yet, as you can imagine, have been made,’ the left-wing NZ Labour Party leader said on Wednesday.”

    – John Hayward

  4. Poll taxes are not fair. Polish Americans with citizenship should not pay more to vote that Chechs or Russians.

    1. When you go to vote do you drive or take a bus? The cost of travel is it a poll tax? No. Neither is the postage stamp although the postage stamp system needs to verified to ensure it is real and not a fake vote.

  5. ACLU attorneys have represented Jerry Falwell’s Christian university in Lynchburg, Virginia. ACLU attorneys also successfully represented Rush Limbaugh for alleged prescription drug abuses. ACLU attorneys also stood up for gun owners by suing the Philadelphia Police Department. Anthony Romero has done many great things for the ACLU. The real problem is not Romero but supporters should switch their donations to the “ACLU Foundation” instead of the political side. There is an added benefit to donating to the “Foundation” side – it’s tax deductible!

  6. “Democrat Mail-In Corruption Ballots” are illegally moving the constitutional election day.

    No person may execute a ballot before…”the Tuesday next after the first Monday in the month of November…” in order that the president “…shall hold his office…[for]…the term of four years,…”

    On the Tuesday next after the first Monday in the month of November, an election must be held at a time, in a place and in a manner – mail-in votes achieve none of those requirements.

    Congress followed the Constitution by setting the election date.

    Democrats believe they are currently ahead in the polls and are illegally attempting to capture those votes before they change.

    Democrats cheat through “ballot harvesting” and democrats are, yet again, attempting to cheat by illegally moving the election “time, place and manner” and the election date.

    SCOTUS is derelict, negligent and highly criminal.

  7. What ever happened to “De minimus non curate lex?” I know, the totaled cost of stamps spread across thousands is substantial, a fact not lost on hungry class action lawyers, but voting is an individual right, and if the voter thinks the cost of a stamp is a better option that traveling to the polls, it is his or her free choice to make. God forbid there if there be parking meters in front of the tolls, or in the case of public transportation, should the government remove the meters or pay the fares to avoid be accused of a “poll tax?”

    1. Christopher Hoey – all of our polling places have free parking. Always have.

    2. Poll taxes are my favorite taxes. I prefer to call them participation fees. Personally, I don’t care if they are supposedly unconstitutional, I think they were good, and we should bring them back, with a bite.

      Now legislatures could do that except the article III judges have the power to cancel these democratic laws, by their fiat. In this case, a stamp flew under the radar.

      Why in a supposed democracy the federal judges can cancel hundreds of laws a year ? Less and less genuinely “democratic” all the time, seems to me, and ironically, usually the federal interpositions cancelling democratic laws, end up favoring the Democrat party. figure that one out!

  8. The hearing on Flynn’s appeal was yesterday. JT has been criticizing the case against Flynn constantly, instead of analyzing the latest in the case he’s writing about…postage stamps? Wow.

    1. It is August 12, 2020 and Michael Flynn is still a political prisoner. Judge Sullivan, dismiss the charges now. Free Michael Flynn.

      1. Sullivan cannot let go; Durham cannot charge.

        The Deep Deep State makes the calls.

        Sullivan is protecting the Obama Coup D’etat in America.

        Sullivan cannot open the floodgates, he would be ostracized; perhaps Arkancided.

      2. Flynn is not a political prisoner.
        In fact, he’s not a prisoner at all.
        Judge Sullivan is appropriately waiting for the DC Circuit Court to rule on a suit filed by Flynn’s lawyers — In re: Michael T. Flynn — before acting on the DOJs motion. Had Flynn’s lawyers not filed suit, Sullivan would already have had the hearing that he’d scheduled for mid-July, and he might well have ruled by now. Blame Flynn’s choice to apply for a writ for Sullivan not having ruled yet.

        Based on the questioning at oral arguments, it seems likely that CADC will rule for Sullivan to proceed with a hearing.

  9. Traveling to the polls generates opportunity cost and fuel costs too. Next up, the ACLU shysters will claim in-person voting incorporates an ‘unconstitutional’ poll tax.

  10. See Wm. Donohue’s history of the organization. They’ve always been a political lawfare operation. They just used to pick better causes.

    1. yes like cancelling prayers and nativity scenes. these dangers to public freedom have been heroically attacked by the shysters.

      not all of them are bad, I had a mentor in law school and she was an ACLU’er that was a very excellent professor and good lawyer and decent person.

      not all their cases are bogus, just more and more than ever are bad.

      presently, i condemn the organization and it’s leadership, if not its remaining number of naive members and supporters.

  11. I totally disagree.  How is this different from charging someone out-of-state .50 cents to vote (or 55 cents, i don’t even know what postage costs) and calling it an out-of-state voter charge? Even if they used those funds to pay for shipping the ballots to the voter and back to the state that would still NOT be okay.  In fact, they probably could charge each voter-by-ballot less than the full cost of a postage stamp to fund that, but they would never do that because a charge on a vote would be very obviously not okay.

    Also, the reason I have no idea what postage costs is because I can’t remember the last time I bought postage stamps and yes, it would be a HUGE inconvenience for me to have to go buy a $10 book of stamps in order to send my ballot.  And I am not a single mother without a car trying to make ends meet.  If I was, buying a $10 book of stamps would definitely be an “obstacle” to voting. How is this *not* treating different voters differently – you are charging a voter if they are out of state or are physically incapable of going to a voting poll.  “There is an inherent cost to voting” is in your top 5 most harebrained slippery slope arguments – and that is saying something.  The cost of a postage stamp, however small it may seem to you, is not difficult to distinguish on a principled basis from the inherent costs of voting. The government should not ADD any charge to voting, period.

    Why have states ever agreed to cover the cost of shipping ballots to the voter and back? Because it was obvious enough to everyone at one point that nobody should have to pay a dime to vote.  Financially difficult times does not change that principle. 

    1. It doesn’t cost anything to go pull the lever at the polling station. You are not required to vote via mail. By putting postage paid on mail in ballots you would not get a postmark and that can cause issues with fake ballots. Out of state voters can absentee vote. This is different than mailed out ballots. Mail out ballots are like a shotgun being spread all throughout the neighborhood and sent to every so called voter or proposed voter. An absentee ballot goes to a specific person and some states do cover postage on absentee ballots.

      I myself would like to see indelible ink used and only in person voting. Elections are about supporting your candidate not about making it easy for you. Precincts are available in all neighborhoods. And there are plenty of groups out there busing voters to the polls.

      Early voting is already in place and controlled just as a polling station is. Our early voting opens 3 weeks prior to the election and is only available for 2 weeks. There are plenty available options already.

      The wheel doesn’t need to be reinvented. Just follow the rules we already have.

  12. “I also happen to agree that, if states are going to use mail-in voting, it should use pre-paid postage return envelopes.”
    Great idea, JT. Let’s make it even easier to abuse the system.

  13. ACLU and their LEADERSHIP, after 11/2016, lost it, they went from a good orginization to a LEFT WING RADICAL TRUMP HATING organization, an arm of the DEMOCRATIC PARTY.

    They abandon their mission in order to get Trump

    1. See Nat Hentoff’s columns and Alan Dershowitz columns from 30+ years back. They’ve been a crooked outfit for a long time. Hentoff and Dershowitz were careful to discuss specific cases and chapters. The rest of us can acknowledge the whole organization is rotten to the core.

  14. ACLU will always have a hard row to hoe in a society where most judges are conservatives.

    1. Bill McWilliams will have a hard row to hoe in a society where most people are fairly sane.

      1. Absurd

        If only you were correct. Instead, we are in a society that has only one political party with two right wings.

  15. Turley: ” My concern with the ACLU is that it has abandoned its long political neutrality.”

    Mine, too. I used to contribute and greatly admired the way they stood up for liberty no matter whose ox was gored.

    They lost me when they lost that virtue.

    1. Mine, too. I used to contribute and greatly admired the way they stood up for liberty no matter whose ox was gored.

      I didn’t realize you were 100 years old.

  16. I agree with the judge on this case. I am not sure why the ACLU filed it. I also agree with you, JT. the ACLU has gone bonkers.

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