Due to high levels of enthusiasm and interest, election experts are predicting record-setting turnout rates in the upcoming 2020 election. In anticipation of this historic election, the ACLU, volunteers, and supporters of voting rights across the country have been advocating for state legislatures to adopt policies that improve registration, the voting process, and ensure that more citizens are eligible to participate.

This year, no state made greater improvements to the registration and voting process than New York. State legislators made voting reforms a priority and passed legislation to enact early voting, create a pre-registration system for 16- and 17-year-olds, provide an online voter registration system with greater accessibility, and allow portability of voter registration records. Furthermore, the state legislature took initial steps in passing state constitutional amendments that will enable New Yorkers to request an absentee ballot without an excuse and to register and vote on the same day. These common-sense reforms will help ensure that more people will be able to participate in future elections. 

In addition to the advancements made in New York, other states improved their registration and voting processes this year. Maine enacted automatic voter registration to ensure that more eligible citizens are registered to vote before Election Day. Nevada and New Mexico enacted laws to allow for same-day voter registration. Virginia enacted no-excuse early in-person voting – a policy the state legislature has an opportunity to expand upon next year by passing additional pro-voter legislation. Lastly, Illinois enacted legislation to ensure that pre-trial detainees in jails can cast their ballot during elections. ACLU People Power volunteers in Illinois began campaigning for this policy change back in 2017. 

We’re all better off when more Americans participate in our democracy. In order to ensure that more citizens are eligible to participate in the upcoming election, the ACLU advocates for state legislatures to remove draconian voter disenfranchisement laws. These laws have racist roots and continue to fuel racial disparities in voting by disproportionately affecting African Americans. This year, progress was made in Colorado and Nevada, where individuals now have the right to register and vote immediately upon release from incarceration.

And just last week, the U.S. House of Representatives passed H.R. 4, the Voting Rights Advancement Act. The bill would help ensure racial barriers to voting are removed from elections across the country. Passing the VRAA will advance needed protections for people whose right to vote is under attack based on the color of their skin.

ACLU works to ensure that all eligible citizens have the right to register to vote, cast their ballot, and have their ballot counted. We will continue to advocate for policies to help ensure that all eligible voters can have their voices heard in the 2020 election.    

Part of an end of year wrap-up series. Read more:

Under Attack by Trump, Immigrant Justice is Advancing in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We Won on Multiple Fronts.

The Battle for Abortion Access is in the States

Bobby Hoffman, Advocacy & Policy Counsel, Voting Rights, ACLU

Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) are using incredibly invasive surveillance technology as part of their continued efforts to target and tear apart communities across the country. They’re doing so in near-total secrecy and without any public accountability.

The ACLU has been asking ICE and CBP for basic information about this program for years, and now we’re asking a federal court to intervene.

In October 2019, Univision reported that an ICE deportation officer used a Stingray — a surveillance device that secretly mimics a cell-phone tower — to track down an immigrant suspected of “unlawful reentry” into the country. Little is publicly known about the use of Stingrays in ICE and CBP immigration enforcement operations, but we know they’ve used the technology repeatedly.

Stingrays, also known as cell-site simulators, track and locate cell phones — and the people using them. Pinging away as they are carted around in unmarked vehicles by law enforcement agencies, these devices ensnare not only a suspect’s cell phone, but innocent bystanders’ phones as well.

The use of powerful, surreptitious surveillance equipment is concerning in any context, and all the more so when done by ICE and CBP — agencies with a long history of abusive surveillance practices that include unlawfully tracking journalists and advocates and subjecting people to invasive searches of their electronic devices at the border. And when those agencies use these tracking technologies in secret, stonewalling our requests for information, we should all be concerned.

That’s why today the ACLU and the New York Civil Liberties Union have filed a lawsuit asking a federal court to order CBP and ICE to produce a range of records about their use, purchase, and oversight of Stingrays.

Transparency is a crucial first step to accountability. For more than two years, ICE has been “processing” our FOIA request for more information on its use of Stingrays. For its part, CBP has claimed that they were “unable to locate or identify any responsive records” — but that’s a completely implausible response. As we’ve cited multiple times, a December 2016 report from the House Committee on Oversight and Government Reform discloses that, as of 2016, CBP and ICE had spent a combined $13 million to purchase and operate at least 92 cell-site simulators.

The public has a right to know if and how often ICE and CBP are using Stingrays, which were originally intended for use by the military and intelligence agencies, for civil immigration enforcement operations. We also have a right to know if the agencies have taken any steps to protect the privacy of bystanders swept up by Stingrays, whether they inform people in immigration court proceedings when a Stingray has been used against them, and what limits, if any, exist on the use of this technology.

It is only with a better understanding of how Stingrays are being utilized within the Trump administration’s immigration enforcement operations that we help ensure people are being protected from unjustified surveillance and targeting.

Alexia Ramirez, NYU Technology Law & Policy Clinic,
& Bobby Hodgson, Staff Attorney, New York Civil Liberties Union

You might think that Rep. Devin Nunes (R-Calif.), the Ranking Member of the House Intelligence Committee, would be too busy to file baseless defamation lawsuits against anonymous Twitter accounts. But you’d be wrong.

Last year, Rep. Nunes sued a number of people who were mean to him online, including the Twitter parody accounts Devin Nunes’ Mom and Devin Nunes’ Cow. Now, he’s trying to unmask the Cow by subpoenaing the author’s identity from a local law firm. The ACLU and Public Citizen have filed a friend-of-the-court brief urging the court to block Nunes’ subpoena because it violates the First Amendment right to anonymous speech.

From Sam Adams to Mark Twain, Americans throughout history have used pseudonyms to criticize public officials. People adopt pseudonyms for a number of different reasons, such as protecting privacy and preventing official retaliation. The Supreme Court has made clear that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of freedom of speech protected by the First Amendment.”

To protect anonymous speech, courts require defamation plaintiffs to satisfy a number of criteria before allowing them to use subpoenas and other discovery tools to unmask anonymous speakers. As particularly relevant here, a plaintiff must demonstrate that the defendant’s statements are plausibly defamatory (i.e., not protected opinion, parody, or political rhetoric) and produce evidence showing that the defendant’s statements were actually false. These requirements prevent plaintiffs from using meritless defamation claims as a vehicle to identify anonymous critics for purposes of retaliation, while allowing plaintiffs with legitimate claims to proceed. As we argue in our friend-of-the-court brief, these safeguards are not just good policy – they’re required by the First Amendment.

Rep. Nunes has utterly failed to satisfy these constitutional requirements. His defamation claims against the Cow are based on constitutionally protected statements of opinion and political rhetoric, such as the contention that Rep. Nunes is a “treasonous cowpoke” whose “boots are full of manure.” Rep. Nunes may not like these characterizations, but the First Amendment vigorously protects the right to use creative expressions of contempt when criticizing government officials. Even if Rep. Nunes had managed to identify a plausibly defamatory statement in his complaint, his subpoena would still fail because he has not submitted any evidence demonstrating that the allegedly defamatory statements about him are false.

Unfortunately, Rep. Nunes’ quest to unmask the Cow is no laughing matter. If he succeeds, government officials, large corporations, and other powerful figures will have a readymade playbook for abusing the judicial process to identify, punish, and silence their critics. Here’s hoping the court throws cold water on Rep. Nunes’ overheated claims. Maybe then he’ll finally learn to leave the Cow alone.

Brian Hauss, Staff Attorney, ACLU Speech, Privacy, and Technology Project