• August 11, 2015
    Guest Post

    by Julie Ebenstein, Staff Attorney, Voting Rights Project, American Civil Liberties Union

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    Just days before the 50th anniversary of the Voting Rights Act, we completed a three-week trial challenging North Carolina’s sweeping anti-voter law. 

    In 2013, soon after the U.S. Supreme Court struck down Section 4 of the Voting Rights Act - and with it, the preclearance protections of Section 5 - North Carolina passed an election law shocking in its lack of a valid purpose and its extensive abridgement of citizens’ right to vote.  The challenged provisions of the law reduced the number of days for early voting, eliminated same-day-registration, and prohibited out-of-precinct Election Day voting.  Cumulatively, the law is one of the most repressive elections bills seen in decades. The law exemplifies a “second generation” barrier to voting.  It created broad, structural impediments to electoral participation, in part on the basis of race, and will likely impact hundreds of thousands of voters in the upcoming presidential election.

    In the pre-2013 world, the law would not likely have survived Section 5 preclearance, and thus, would never have been implemented.  But the absence of Section 5’s protection has created a severe disadvantage for voters challenging state’s vote denial measures. Our lawsuit, filed the day the law was implemented, illustrates some of the obstacles to protecting voting rights in the post-Shelby era.

    Section 2’s prohibition on racial discrimination is one of the remaining tools to protect the franchise, but it requires that litigation take place after a law has already gone into effect. As such, the advantages of time and inertia have shifted back to the perpetrators of voter suppression and away from its victims.  Section 2 cases are fact intensive, time-consuming and resource-intensive undertakings.  With constant election cycles, there is no guarantee that the legality of state election laws will be determined before voters are irreversibly disenfranchised.

    The 2014 federal election provides numerous examples. In late 2014, we saw rapid-fire orders by the U.S. Supreme Court, instructing the Sixth, Fourth, Seventh and Fifth Circuits to put election-related decisions on hold until after the election.  Over the course of three weeks, the U.S. Supreme Court made four determinations that affected voting rights in key federal elections.  On September 29, 2014, the Court stayed an Ohio district court decision, upheld by a Sixth Circuit appeals panel, enjoining the state’s cuts to early voting.  The following week, on October 8, the Court stayed the Fourth Circuit mandate to reinstate same-day registration and out-of-precinct voting, after the district court declined to enjoin the practices.  The next day, the Court vacated the Seventh Circuit’s stay of a Wisconsin district court’s permanent injunction of the state’s strict voter ID law.  On October 18, the Court denied applications to vacate the Fifth Circuit’s stay of a decision enjoining Texas’s voter ID law. 

  • November 7, 2014

    by Caroline Cox

    Robert Barnes reports for The Washington Post on the decision of the U.S. Court of Appeals for the Sixth Circuit to uphold bans on same-sex marriage. According to SCOTUSblog, the ACLU has announced that it will be filing for Supreme Court review right away.

    Chris Geidner of Buzzfeed reports that U.S. District Court Judge Ortrie Smith has ruled Missouri’s ban on same-sex marriage to be unconstitutional. 

    In The Atlantic, Olga Khazan explains why personhood amendments continue to fail throughout the country.

    Steven Mazie writes for The Economist about the oral argument for Yates. V. United States, colloquially known as the “fish case.”

    The National Constitution Center provides a podcast featuring Eugene Kontorovich, Michael Ramsey, and Jeffrey Rosen discussing the oral argument for Zivotofsky v. Kerry, the Jerusalem passport case.

    At the blog for Alliance for Justice, Tom Devine writes about Department of Homeland Security v. MacLean, a case that “will have fundamental consequences for whistleblowers and for the country.”

  • October 16, 2014

    by Caroline Cox

    In the National Law Journal’s Legal Times blog, Katelyn Polantz reports on the announcement that ACLU lawyer Vanita Gupta will lead the U.S. Department of Justice’s Civil Rights Division. She is the first South Asian-American to lead the division.

    ACS Board of Directors member Linda Greenhouse examines the exciting opening days of the Supreme Court in The New York Times.

    Garrett Epps considers in The Atlantic how the right to abortion set by Roe v. Wade has eroded over the years.

    In Hamilton and Griffin on Rights, Marci A. Hamilton examines how politicians can protect women and “nullify the effect of the pernicious Hobby Lobby decision.”

    Jonathan Cohn writes in The New Republic that the Supreme Court’s decision to put a hold on portions of a Texas abortion law should make pro-choice advocates optimistic.

  • September 9, 2014
    Guest Post

    by Geoffrey R. Stone. He is the Edward H. Levi Distinguished Service Professor of Law for the University of Chicago, the former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter, and a Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter

    *This post originally appeared on the Huffington Post. 

    In the context of ongoing deliberations over a proposed amendment to the Constitution to authorize the government to enact laws regulating campaign expenditures and contributions, a sharp, even bitter, rift has emerged between different generations of the ACLU's leadership over the ACLU's understanding of the First Amendment. The rift is not about whether to adopt the proposed constitutional amendment (neither side of the intra-ACLU debate has endorsed it), but about the ACLU's position on the constitutionality of campaign finance reform today.

    The current leadership of the ACLU takes a strong pro-free speech position that, like the position of Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts, looks askance at most forms of campaign finance regulation that would limit the freedom of individuals to spend as much as they want in the political process to advance their political beliefs.

    The six individuals who led the ACLU from 1962 to 1993 endorse a rather different view. In a letter sent on September 4 to the leadership of the Senate Committee on the Judiciary, they embraced a position that, like the position of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, recognizes that limitations on campaign expenditures and contributions may be necessary to ensure the proper functioning of the democratic process.

  • January 22, 2014
    Guest Post
    by Joshua Block, LGBT Project, American Civil Liberties Union
    This post originally appeared on the ACLU's Blog of Rights.
    Yesterday, the ACLU filed a lawsuit against Utah to force the state to continue recognizing the marriages of more than 1,000 same-sex couples who were legally married in the weeks after a federal court struck down Utah’s bans on allowing same-sex couples to marry. From the moment the federal court in Kitchen v. Herbert issued its decision on December 20, 2013, to the moment the Supreme Court issued a stay of the ruling on January 6, 2014 while the case is appealed, there was an outpouring of same-sex couples across the state who were finally able to express their love and commitment to each other through marriage and to protect their families through the protections and responsibilities that flow from being legally married.
    After the Supreme Court stayed enforcement of the district court’s decision Utah’s governor has issued a directive ordering all state agencies to put the recognition of those marriages “on hold.” By terminating recognition of their marriages, the Governor’s directive effectively divorced over 1,000 couples in the eyes of the state, throwing their lives into disarray.
    “We’re back at square one, with no idea what’s going to happen to us if one of us is hospitalized,” says Stacia. Her wife JoNell was treated much better when accompanying her during an emergency room visit after they were married than she was the time medical staff ignored and excluded JoNell during a previous hospitalization three years ago.  “After 13 years together, we just want the security and peace of mind to know we can be there for each other in the hard times.”