I recently criticized the stream of lawsuits filed by the American Civil Liberties Union (ACLU) during the Trump administration. The more than 400 lawsuits represent a shift from the previous careful litigation strategy of the ACLU, which once dealt with the creation of a bad precedent as well as the creation of a good precedent. While the ACLU has had some significant successes, it has also lost many of these cases. The most recent loss was a US-disapproved District Judge Amy Totenberg over a claim that postage on postal ballot papers is a form of polling tax.
In a federal lawsuit filed on behalf of the Black Voters Matter Fund and a DeKalb County voter, the ACLU argued that postage was a voting fee prohibited by the 24th Amendment. In the statement below, Judge Totenberg stated that while the ACLU was concerned about practical obstacles to voting, it could not maintain this right or issue an order at this late stage:
“The fact that any registered voter can vote on Election Day in Georgia without buying a postage stamp and without taking any additional steps other than appearing in the electoral district and complying with general electoral regulations requires the conclusion that postage stamps are not an election and taxes. "
The court found that it was concerned about the barrier to postage, but that "the public would benefit if the parties immediately discussed means to achieve the goal of removing the voting barriers created by the Covid-19 pandemic to reach". This may include parties providing postage or creating additional options for the delivery of the ballot papers.
I cannot imagine how a court could rule in favor of such a 24th amendment analogy on the stamp. I also agree that states using mail-in voting should use prepaid envelopes. Therefore, I agree with the ACLU on public policy, but not on constitutional claim.
In Bush v Gore, 531 US 98, 104-05 (2000), the Court ruled that “(h) the state, once granted the right to vote on equal terms, may not be arbitrarily and unequal treatment later Value one has one person's voice over another person's. . . . “However, this is only one option for voting. The minimum postage cost does not evaluate one person's voice over another when someone can vote without the cost. In addition, there are personal costs associated with voting. Leaving work or traveling to polling stations can create unequal stresses. The mail-in voting option was developed to expand the options for people from personal voting to postal voting to mail-in voting.
My concern with the ACLU is that it has given up its long political neutrality in order to appeal to donors who are calling for more partisan positions and priorities. I am unabashedly part of the “old guard” in the community of civil liberties. I've worked with the ACLU for decades, watching how internal struggles lead to the departure of long-standing personalities. Under Executive Director Anthony Romero, the group has increasingly allied itself 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 crude political position for its director. The group took pride in its focus on defending constitutional rights in court. Romero's hyperbolic attack on this agency, including his claim that "President Trump made the DHS the most notable badge of shame of our administration". The ACLU's original model was that both conservatives and liberals could support an apolitical, constitutional-friendly organization that fought equally for all rights. Romero seems intent on turning the group into the legal arm of the "resistance" and replacing their traditional caution in litigation with a feeling of utter abandonment. This undoubtedly excites many wealthy liberal donors, but it is the loss of a unique organization that once brought conservatives, liberals and libertarians together on a common article of faith in the constitution.
There was a time when the ACLU was wonderfully contrary – not committed to any party. The group now appears to be raising money for its role in resisting Trump and moving away from clear positions in favor of due process and other rights. This includes abandoning his long position on free speech in support of the rights of all groups left and right. The ACLU is now committed to protecting freedom of expression for those on the far right. The clarity of the previous position reflected the core principle of free speech. The ACLU now appears to be taking a more nuanced content-based approach (the very kind of content discrimination it has long spoken out against).
My biggest concern is that the ACLU is reckless with a saturated bombing approach to litigation. This is an example of a creative suggestion that should have been left in a brainstorming session at ACLU headquarters.