As far back as the 1930s, the ACLU affirmed that economic justice was essential to achieving racial justice. In its 1931 Black Justice report, the organization’s first on the civil liberties of Black Americans, the ACLU reported that more than 3,555 Negroes had been lynched since 1882, averaging 74 per year or more than one per week. According to the forward, written by Broadus Mitchell of Maryland, Black Justice’s purpose was to answer “Why these gross discriminations against the Negro?” Mitchell replied to that crucial question with remarkable clarity: “The Negro has been oppressed because he has a low standard of living and little economic independence. And the other way around, he is economically servile because he has been oppressed.”

Whether or not he knew it, Mitchell was making an important constitutional observation: The Constitution’s promises of liberty and equality are linked. In 2003, in Lawrence v. Texas, the Supreme Court held that equal protection and “substantive guarantee of liberty are linked in important respects.” Subsequently, Justice Kennedy, author of the Lawrence opinion, explained that the government has a “legitimate interest … in ensuring all people have equal opportunity regardless of their race.” While we have historically thought of equality in the narrow terms of equal protection and due process, we take Mitchell’s forward as a call to consider how our present definition of rights, and actions to defend those rights, are tied to past discrimination, especially economic discrimination.

Though much has changed since the publication of Black Justice, the economic position of Black Americans relative to white Americans remains precarious at best. When President Lincoln signed the Emancipation Proclamation in 1863, former slaves owned 0.5 percent of the nation’s wealth. Over 150 years later, the descendants of those slaves own just 1 percent of the nation’s total wealth. In other words, even emancipation, civil rights, increases to education, and improved employment have not substantially advanced Black people’s democratic participation in our economic system. The power of inherited wealth is in fact so pronounced that economists Darrick Hamilton and Sandy Darity concluded intergenerational transfers “account for more of the racial wealth gap than any other demographic and socioeconomic indicators.”

That would be bad enough, but racial discrimination persists to worsen the situation — and this is the key: Discrimination persists in part because Black people’s subordinate economic position left them with little ability to resist. Ongoing labor market discrimination by the government, unions, and private employers, topped off by housing segregation, forces most Black Americans into unstable jobs with poor wages and a lack of essential retirement benefits. And for those who can pull together enough to try and acquire a home, Black Americans often find themselves in a “Jim Crow credit market” for mortgages. That market provides whites with lower interest rates and longer repayment periods, while giving Black people just the opposite though their economic situation is more vulnerable. To quote Shakespeare, “what’s past is prologue” in the case of race, wealth, and power in America.

In the aftermath of the subprime housing crisis, the ACLU returned to its roots, making a firmer case for the relationship between equal protection and economic justice. The crisis, which resulted from targeted discrimination and then the financialization of that discrimination, wiped out 53 percent of Black wealth, compared to 16 percent of white wealth, permanently devastating Black communities. As of 2016, only 40 percent of Black families owned homes, compared with 70 percent of white households. This was intolerable to us, and threatened our constitutional order by further imperiling the equal status of Black Americans.

The ACLU’s Racial Justice Program has fought to hold Wall Street accountable in groundbreaking cases like Adkins v. Morgan Stanley for fueling predatory lending in communities of color and, with our Smart Justice campaign, challenged the unconstitutional incarceration of people too poor to pay fines and fees they owe local courts. Our amicus brief in Timbs v. Indiana detailed how the reliance on fines and fees for government revenue creates powerful incentives to impose excessive financial penalties, with disastrous consequences on people who cannot pay. Single mothers of color were jailed for up to 57 days and separated from their children because they could not pay exorbitant fines to the courts of Lexington County, South Carolina. Hundreds of thousands of people are harmed by North Carolina’s revocation of driver’s licenses simply for inability to pay court debt. The list goes on. Our Smart Justice campaign is also actively challenging the criminalization of private debt, which again is targeted at low-income communities of color who rely on subprime loans because of their lack of access to mainstream finance.

Systemic Equality augments those efforts and takes the ACLU to the next level in its fight against the economic, legally enshrined repression suffered by Black Americans. We are tackling the roots of the problem by breaking down systems designed to discriminate against Black, Indigenous, and other people of color.

Student Debt. America’s system of education finance has driven the cost of higher education higher beyond imagination. And Black families, which were historically denied housing wealth, take on the greatest burden in this system, perpetuating our nation’s history of redlining and housing discrimination. This system is racist and predatory, so we are calling for the Biden administration to forgive $50,000 of student debt per borrower. If we achieve this result, the racial wealth gap will be reduced by 22 percent.

Postal Banking. As of 2017, 47 percent of Black Americans were un- or under-banked, compared with just 33 percent of white Americans, and so often find themselves trapped by usurious debt that depletes their ability to build wealth. The U.S. Post Office can offer a solution. Currently, 59 percent of ZIP codes have one or no bank branches, but there is a brick-and-mortar post office in every single ZIP code across this country. By providing low-cost services like check cashing, money transfers, and bill pay, the Post Office can save all un- and under-banked Americans (roughly 25 percent) nearly $3,000 a year and the median Black family over $86,000 in their lifetime. As important, it can undermine the Jim Crow credit markets that exist in majority Black neighborhoods.

Child Tax Credit. Every day in America, 1,683 children are born into poverty. If that child is Black, she has a 30 percent chance of being poor, more than three times that of a white child. Because she is poor, she will be at risk of toxic stress that will stunt her development, creating opportunity gaps that can last a lifetime. And all because her family lacked the resources to make ends meet in communities burdened by high unemployment and subprime credit options.

Enhancing the Child Tax Credit as proposed in the coronavirus relief bill would reduce child poverty by 40 percent and lift over 50 percent of Black children out of poverty. It would be the first time in our nation’s history that fewer than 10 percent of Black children in America grow up poor. The ACLU is committed to enacting the credit in 2021 and making the credit permanent later this year.

The fact that the racial and economic oppression of Black Americans are two sides of the same coin is something we too often are reminded of. The March on Washington in 1963, for instance, was a march for jobs and freedom precisely because lead organizer A. Phillip Randolph fervently believed that civil rights could never be achieved if the economic injustice resulting from discrimination were not addressed. We at the ACLU will never forget this link. The discrimination that stunted Black economic and political progress lives with us today in the racial wealth gap. And so, as we engage in this multi-year campaign for Systemic Equality, the racial wealth gap will be front and center.

During Arizona’s 2022 legislative session, lawmakers are considering HB 2507, a bill that is nearly identical to legislation they tried to enact in 2021 (HB 2648). Though similar to the previous bill, HB 2507 is more alarming in at least one way: Its definition of “discriminatory act” is even broader. Among other things, the 2021 legislation would have forbidden the government from imposing any fees, penalties, injunctions, or damages against a religious organization or religious corporation in connection with the organization’s exercise of religion. By comparison, under HB 2507, a “discriminatory act” is defined as any “direct or indirect act” that “adversely affects” a religious organization, including “exclusion, restriction, segregation, limitation, refusal, or denial.” In other words, religious organizations and religious corporations could claim that the bill allows them to be free from any governmental action they say adversely affects them.

Religious exemptions on steroids: That’s the only way to describe legislation being considered this week by lawmakers in Arizona, South Carolina, and Montana. Under the guise of protecting the ability to worship during emergency disasters, these bills could give religious organizations blanket immunity from all civil and criminal liability — as long as they claim to be exercising their faith while engaging in the unlawful conduct.

Granting religious organizations these broad, unprecedented, and frightening exemptions from the law could result in untold harm for states and communities across the board. For example, passing the bills would mean that:

• Religious organizations in that state could claim immunity from criminal prosecution and civil liability for the sexual abuse or physical harm of children in connection with religious activities or rituals;
• Religious organizations could be shielded from the consequences of violating state nondiscrimination laws that conflict with their religious beliefs;
• Religiously motivated hate groups could avoid prosecution for criminal activities associated with exercising their beliefs; and
• Patients at religious hospitals could be unable to sue for medically negligent or reckless care that was provided based on the hospital’s religious beliefs.

Religious organizations would even be exempt from more mundane laws. For example, a house of worship that violates fire codes by exceeding capacity limits during religious services could not be fined or otherwise forced to comply with the law.

Exempting religious organizations from nearly every law and shielding them from civil and criminal liability — no matter the harm to others — is the type of religious preference that the U.S. Constitution forbids.

These bills don’t end there, though. Additional provisions would further undermine the separation of church and state and make the government an accomplice to discrimination. For example, the bills could prohibit the state from denying state contracts, licenses, and certifications, as well as tax exemptions based on religious organizations’ exercise of their faith. Under these provisions, the state could be required to give government contracts to groups like the KKK, which claim to be religiously based, or organizations that claim a religious right to discriminate against certain social-services beneficiaries.

The bills also mean that a state could be prevented from recovering public funds used by religious organizations for fraudulent or improper purposes, as long as the funds were used while engaging in religious activities. The state could likewise be precluded from denying a religious day care a license to operate even if the organization’s religious beliefs and practices prevent it from complying with relevant child protection laws. And the state could be forced to approve tax-exempt status for a religious charity that blatantly discriminates and refuses to hire people of color.

These religious exemptions are so unprecedented and radical that it’s not surprising that supporters are hiding them in bills that, at first glance, appear to simply address the right to hold worship services during an emergency. Throughout the pandemic, this right has been at the forefront of litigation challenging restrictions on in-person gatherings. The question has even reached the U.S. Supreme Court. The court has issued several decisions making clear that, although limits on worship services are permissible in the name of public health, the restrictions may not be more severe than those imposed on comparable secular gatherings.

Despite the Supreme Court’s affirmation that the First Amendment already protects worship services during times of crisis, longtime advocates of religious exemptions have pushed dozens of bills in state legislatures across the country purporting to safeguard the right to worship during emergency disasters, such as the pandemic. Many of these bills are deeply problematic because they exempt worship services from general emergency restrictions on in-person gatherings without any consideration of the potential harm they may cause. Other bills go even further, exempting all religious organizations in a state from any emergency restrictions or deeming their operations “essential” — again, without any regard for the danger this poses to the public and despite the fact that secular activities of comparable risk may be prohibited.

But bills like HB 2648 in Arizona, HB 3105 in South Carolina, and SB 172 in Montana take the matter to whole new, never-before-seen level. While the bills do have language relating to the ability of religious organizations to operate during emergency disasters, tucked into them are provisions that would allow religious organizations to make broad claims of civil and criminal immunity, both during a public emergency and, arguably, in non-emergency contexts as well.

Specifically, the bills prohibit the government from taking certain “discriminatory” actions against religious organizations and their employees based on their exercise of religion. Among the acts defined as “discriminatory”: imposing any monetary fine, fee, criminal or civil penalty, damages award, or injunction against a religious organization; withholding or denying state contracts, grants, licenses, certifications, etc. for religious organizations; and altering the tax treatment of religious organizations.

Unfortunately, one state legislature, Arkansas, already enacted a similar liability shield bill last month. Hopefully, lawmakers in Arizona, Montana, South Carolina, and other states will not make the same mistake. They should recognize these bills for what they are: a Trojan horse.

This was originally published on Democracy Docket.

There’s one trend election observers can be confident of year after year: Record turnout will always be swiftly followed by a tidal wave of voter suppression efforts.

The 2008 election was the first presidential election in American history in which voters of color constituted one quarter of the nation’s eligible electorate. That election also saw a massive shift in the racial composition of early in-person voting, with Black voters casting their votes early in person more frequently than white voters (an estimated 24 percent to 17 percent nationally). This record turnout was followed by an unprecedented effort to cut back early in-person voting in states including North Carolina, Ohio, Wisconsin and Florida — which notoriously tried to ban voting on Sundays, a move that would have effectively eliminated Souls to the Polls efforts by Black churches.

We are now witnessing a rerun. The 2020 presidential election saw more than 159 million votes cast — shattering the record for the most voters to ever participate in an election in American history by more than 20 million voters. The 2020 election had the highest turnout rate since the 1900 presidential election. Seven of the 10 states where turnout rose the most conducted their elections entirely or mostly by mail. The percentage of Black voters casting their ballots by mail more than doubled from about 18 percent of Black voters in 2016, to an estimated 38 percent in 2020.

And like clockwork, we are now seeing an onslaught of proposed legislation to cut back voting by mail, including in states like Arizona, Iowa, Florida, Wisconsin — and most notoriously, Georgia. In Georgia, pending legislation would require voters to submit photocopies of their identification twice when seeking to vote by mail; bar elections officials from affirmatively mailing absentee ballot applications to voters; reduce the window for requesting absentee ballots; place restrictions on drop boxes for returning ballots; and eliminate no-excuse absentee voting altogether.

It’s not just absentee balloting that’s under attack — invoking the Big Lie, legislators throughout the country have proposed not only a staggering array of other restrictions on registration and voting, but even restrictions on citizen-led ballot initiatives and bans on donations for elections administration resources like PPE.

The single reform that would do the most to fight back against the voter suppression efforts sweeping the country is Election Day Registration (EDR), which allows eligible voters to register to vote and cast a ballot at the same time on Election Day, effectively eliminating earlier registration deadlines. The 10 states with the highest turnout in 2020 all had same-day registration, with nine of the top 10 offering same-day registration on Election Day (one of the top 10, North Carolina, only offers same-day registration during its early voting period). The consensus among political scientists is that EDR boosts turnout by two to 10 percentage points, with particularly strong gains among historically lower-turnout or disenfranchised groups like young, lower-income, and Black voters.

Allowing registration and voting on the same day reduces the logistical hurdles associated with voting by simplifying a two-step process into a single trip to a polling location. EDR also allows voters to update or correct their registrations on Election Day, which prevents the disenfranchisement of those who have recently moved or who have been erroneously purged from the rolls. And perhaps most significantly, voter interest is at its highest once voting has commenced; EDR capitalizes on that interest to bring new voters into the process.

The good news is that 21 states and the District of Columbia have already enacted some form of same-day registration, as set forth on this map from the National Conference of State Legislatures:

These states are a mix of “blue” states (for example, California, Colorado); “red” states (Idaho, Utah, Wyoming); and “purple” states (Maine and Wisconsin). EDR is not just popular across the ideological spectrum, it is increasingly so, as six states have adopted it since the beginning of 2018: Maryland, Michigan, Nevada, New Mexico, Utah, and Washington.

Efforts to expand EDR should focus on states that currently lack it and where the political environment would seem to make it a no-brainer, such as Massachusetts and New York which are both currently considering EDR. Let’s hope they find the political will, because the absence of EDR in these two states is a common talking point by opponents of expanding voting rights in other states.

We also need to fight back against an effort this year to eliminate EDR in Montana; if successful, it would make Montana the first state in the country to repeal EDR. And ultimately, national legislation for EDR, as is contained in H.R. 1 — which passed the House in early March — would establish a national standard so that all Americans can share in the same registration and voting opportunities enjoyed by people in states like Utah and Wyoming.

But there’s an important caveat. While EDR and other reforms aimed at increasing voter turnout are absolutely essential to fighting back against voter suppression, they are insufficient to cure all that ails our democracy today. The very structures of our political system are conspiring to prevent the will of the majority from translating into representative self-government.

For one thing, extreme gerrymandering has largely locked up the political process in many states, distorting elections results. After the 2017 and 2018 elections, five state legislatures were controlled by parties that had lost a majority of the statewide vote (Virginia, Wisconsin, Pennsylvania, Michigan, and North Carolina). The next round of redistricting, which starts later this year, presents opportunities to address these distortions. But failure to reform these maps could entrench another decade of minority rule in these and other states.

At the national level, the anti-majoritarian problems facing our democracy are likely to grow even worse. People of color already constitute a majority of children in the U.S., and are projected by 2045 to be a majority of the total U.S. population. But at roughly the same time, about 70 percent of the population will live in just 15 states — which means that just 30 percent of the country will choose 70 percent of Senators and a super-majority of the Electoral College. To compound matters, Americans across the ideological spectrum are increasingly falling prey to disinformation, finding difficulty agreeing on basic facts, and losing confidence in democracy itself.

Ultimately, we need to make registration and voting simpler and easier, and to boost turnout to respectable levels. But doing so will not solve everything. We need a renewed commitment to democracy itself, and to the basic principle that every individual should count equally in our political processes. That will be the work not of lawyers, but of all of us as Americans.