This week, the House is expected to vote on H.R. 4, the Voting Rights Advancement Act of 2019. 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.

This will be the first time Congress votes on a bill to restore and update the protections of the Voting Rights Act since the Supreme Court crippled the law in the 2013 decision of Shelby County v. Holder. In delivering the 5-4 majority opinion, Chief Justice John Roberts expressly invited Congress to update the Act’s protections based on current conditions of discrimination. Congress must follow through on that invitation because we currently lack the tools to enforce everyone’s voting rights under the Constitution and federal law.

Congress enacted the Voting Rights Act in 1965 after trying and failing for almost a century to remedy the affliction of racial discrimination in the voting process. The most powerful enforcement tool in the Voting Rights Act was the federal preclearance process, established by Section 5. It required locations with the worst records of voting discrimination to federally “preclear” — or get federal approval for — voting changes by demonstrating to either the Justice Department or the D.C. federal court that the voting change would not have a discriminatory purpose or effect. What preclearance meant in practice was that certain states and jurisdictions with documented histories of voting discrimination could not enforce photo ID laws, for example, without showing that the ID requirement did not discriminate on the basis of race.

The Act also established a “coverage formula” to identify which locations suffered from the worst records of racial discrimination and would be subject to preclearance. Since its enactment in 1965, Section 5 has had a massive impact in dismantling voting discrimination — the biggest of any congressional action — successfully blocking more than 1,000 instances of discriminatory election rules advanced by state and local officials. Because of its effectiveness, Congress reauthorized Section 5 four times, most recently in 2006. At the time, Congress concluded that although the country had made significant progress in reducing barriers to voting, the evidence of enduring racial voting discrimination in the covered jurisdictions justified Section 5’s continued protection.

When the Supreme Court effectively nullified preclearance in 2013, the Court released the worst offenders from federal oversight of their voting changes. The decision, which came amid a surge of minority political participation following the 2008 election and 2012 re-election of our nation’s first African American president, catalyzed a renewed race to stop voters of color from exercising the franchise. These changes have purposefully targeted minority voters to counteract their increased political power. States that used to be covered by preclearance, and even those with less deplorable records, took the Shelby decision as a signal to enact voting restrictions with impunity, and the flood gates were opened to voting discrimination unlike anything the country had seen in a generation. A squall of voting restrictions was advanced on a national scale, including: photo ID laws, restraints on voter registration, voter purges, cuts to early voting, restrictions on the casting and counting of absentee and provisional ballots, documentary proof of citizenship requirements, polling place closures and consolidations, and criminalization of acts associated with registration or voting.

This rash of discriminatory voting laws has, in turn, resulted in an explosion of litigation to protect voters from state and local officials’ violations of federal law. Since Shelby County, the ACLU has opened more than 60 new voting rights cases and investigations and we currently have more than 30 active matters. Between the 2012 and 2016 presidential elections alone, the ACLU and its affiliates won 15 voting rights victories, protecting more than 5.6 million voters in 12 states that collectively are home to 161 members of the House of Representatives and wield 185 votes in the Electoral College.

The ACLU’s recent litigation experience reveals two things: our record of success in blocking discriminatory voting changes — with an overall success rate in Voting Rights Act litigation of more than 80 percent — reveals that state and local officials are continuing to engage in a widespread pattern of racial discrimination and are committing pervasive violations of federal law. It also shows that we lack the tools needed to stop discriminatory changes to voting laws before they taint an election. That’s because the discriminatory laws that the ACLU has ultimately succeeded in blocking have remained in place for months or even years while litigation proceeded — crucial time in which elections have been held and hundreds of government officials have been elected under unfair conditions.   

The key to Section 5’s strength is its prophylactic response: it temporarily suspends potentially discriminatory changes before, instead of after, they can impact elections. In adopting and reauthorizing the Voting Rights Act four times, Congress repeatedly emphasized the importance of creating an enforcement tool with the ability to block changes before they take root and impact voters. 

The House voting on the Voting Rights Advancement Act soon builds on its predecessor’s successful prophylactic approach in four distinct ways. First, it enacts a new preclearance coverage formula based on current conditions, ensuring that places with the worst records of discrimination or greatest risk of discrimination will have to preclear voting changes. Second, it institutes a new preliminary injunction standard so that potentially discriminatory voting changes cannot be enforced until a lawsuit alleging discrimination is fully adjudicated. Third, it establishes robust notice requirements for jurisdictions to provide public information on voting changes before elections, putting the public in a stronger position to weigh in with officials on the wisdom and impact of the proposed changes on minority voting rights. Fourth, the bill gives the Department of Justice increased authority to send federal observers to monitor voting conditions during elections, again permitting greater oversight over potentially discriminatory voting conditions, so they can be addressed before they impact voters. 

It is long past due for Congress to renew the protections of the Voting Rights Act. The price of inaction to protect the voting rights of Americans is high, and history offers a myriad of examples demonstrating its cost to the nation. Congress must act now to cement the legacy of the Voting Rights Act and guard the rights of all Americans.

It is long past due for Congress to renew the protections of the Voting Rights Act. The price of inaction is too high for us to wait.

Sonia Gill, Senior Legislative Counsel, ACLU

As part of a coordinated effort that undermined the freedom of the press, the U.S. government tracked, detained, and interrogated journalists who were reporting on conditions at the U.S.-Mexico border. Now, we’re suing on their behalf to defend their First Amendment rights.

Together with the New York Civil Liberties Union and the ACLU of San Diego & Imperial Counties, we’re representing five photojournalists who traveled to Mexico in late 2018 and early 2019 to document the experiences of people traveling by caravan towards the U.S.-Mexico border. Their photographs were subsequently published by news outlets such as The New York Times and The Intercept.

On multiple separate occasions, border officers detained each journalist as they sought to return to the U.S. They interrogated the journalists about their coverage of the caravans of people traveling, and asked them about their observations of conditions at the U.S.-Mexico border, including in shelters. A couple of the journalists were also presented with a book of headshots and asked to identify people they recognized. Some of the journalists were forced to disclose the photographs they had taken in Mexico to border officers, and one officer captured some of these photos with a cell phone.

The interrogations and searches were part of a concerted government effort. A secret government database leaked to the public in March 2019 revealed that the five journalists were specifically targeted as part of a broad group of people including lawyers, a pastor, and immigration advocates working at the southern border. Reporting on the database also revealed that the U.S. government coordinated with Mexican authorities to monitor these individuals.

The database contained the photos and personal information of the journalists in our case, including their name, date of birth, the fact that an alert had been placed on them, and a notation of whether they had been subjected to interrogation. Three of the photos were crossed out with a bold X on them. A fourth, which wasn’t crossed out, stated: Pending Encounter.

One of the journalists in the case was also denied entry to Mexico during the time period of the interrogations, preventing her from continuing her work there.

The border officers’ targeting, detention, and questioning of the journalists was unconstitutional. The government violated the First Amendment by compelling each journalist to disclose confidential information about their observations as journalists and about their sources, including the identities of people with whom they may have interacted while working in Mexico.

The government’s disturbing actions also risk deterring other journalists from performing their vital function, which enables us to hold our government accountable. The public needs to know what is happening at the southern border, including about how the government treats asylum seekers. A free and independent press plays a crucial role in documenting these conditions and informing the public. Journalists must be free to continue this critically important work.

That the government’s actions occurred at the border makes them no less unlawful. Border officers at ports of entry may ask questions relating to immigration or customs, but they may not use border screening as a pretext to interrogate journalists about their work. Even in the case of federal law enforcement investigations, journalists enjoy basic protections that play an important part in preserving the freedom of the press. Allowing the government to force journalists to reveal information about their work and sources simply because they travel in and out of the U.S. would imperil that freedom. 

When the government tries to circumvent constitutional protections, we must hold it accountable. No journalist should have to fear government interference for having the persistence, courage, and commitment to expose the truth.

Scarlet Kim, Staff Attorney, ACLU National Security Project
Esha Bhandari, Staff Attorney, ACLU Speech, Privacy, and Technology Project
& Mitra Ebadolahi, Border Litigation Project Staff Attorney, ACLU of San Diego & Imperial Counties

Transgender people are criminalized for our bodies.

We are profiled, stereotyped, and presumed guilty based on the way we look or for failing to meet gender expectations, and it must stop.

Nearly one in six transgender people has been incarcerated. For trans people of color, the number is one in two. It’s staggering, and it demonstrates the deep bias in our current laws and criminal justice system.

This World AIDS Day, let’s not forget that transgender women — particularly trans women of color — are also more likely to be living with HIV than cisgender people. The fight for trans justice cannot be separated from the work to reduce new transmission and provide care to those who are living with HIV, while ending stigma and criminalization for having HIV. To win this fight, we must decriminalize sex work.

Since the passage of the Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), trans sex workers have been pushed to hit the streets late at night or take other risky actions, which put them in more danger. They aren’t able to screen their clientele and can’t take precautions to protect themselves in case something bad happens to them.

Being back on the streets increases the risk for unsafe sex practices. Economically marginalized people face increased pressure to engage in risky behavior and have less ability to control their activities.

Trans women of color are frequently profiled as sex workers even when they are not engaging in sex work. This has highly impacted undocumented sex workers, who are at even higher risk of harassment and abuse. Walking while trans laws and no condoms as evidence laws can help stop the profiling of trans women and especially trans women of color.

Trans people who choose to engage in sex work still need the law to protect against coercion, violence, and abuse.We face arrest, abuse and violence. We deserve a legal system that protects us, not only from incarceration, but also from the dangers of life on the street where many of us are forced to turn for survival.

That’s why the ACLU’s Trans Justice campaign, along with local partners and organizations led by current and former sex workers, is fighting to end the targeting of trans people by decriminalizing sex work. Such reform would help to protect sex workers from HIV, lowering the risk of putting themselves in compromised situations. It would make interacting with clients safer, reduce violent interactions with police, and lessen the fear of talking to the police when abuse does happen.

This reform is especially important for sex workers living with HIV. In many states, what would normally be misdemeanor charges related to sex work become felonies for people living with HIV. These laws have been used to send trans women and others living with HIV to prison for years, even when there was no risk of HIV transmission. In some states, after incarceration, they need to register as sex offenders. These laws not only don’t stop HIV transmission — they make it more likely. They spread misinformation and stigma about HIV, push sex workers and clients into riskier choices, and make it harder for people to survive.

As the World Health Organization has found, sex workers are among the most vulnerable to HIV, and laws criminalizing their activities increase violence and stigma against them.

Sex workers deserve protection from violence and access to health care free from stigma. By changing our laws, we can bring sex work out of the dangerous corners of the world and into the light where people are protected — not targeted — by the law.

LaLa B Holston-Zannell, Trans Justice Campaign Manager, ACLU