It’s after Labor Day, the weather is changing, leaves are turning, which all means — Election season is officially here. November 3 is now less than 50 days away, and we at the ACLU have been working for months nationwide to ensure voters safe and secure access to the ballot and to protect everyone’s rights while voting — and now that time is here. During the COVID-19 pandemic, it is essential that we not only protect our health but also our civil liberties — including our fundamental right to vote. It’s on all of us to make our plan to vote. Today is not too early to act. 

Check your voter registration status and voter identification requirements:

The first step: Check your voter registration. For those of you who have recently moved or if you are a first time voter (welcome!), it’s essential that you update your registration or register to vote. Many states have voter registration deadlines as early as a month before Election Day, so get registered today. Even those of you who have voted for decades, it’s essential to confirm your voter registration status. Some states use unlawful voter roll purges that may have removed your name from the list, so it’s best to double check.
 
Next, check your state’s ID requirements. Thirty-six states have some form of voter ID law currently in effect. Strict photo ID laws don’t affect all people equally, but every American’s voting rights are put at risk when state legislatures enact ID laws that cherry pick the forms of IDs deemed acceptable. As a voting rights advocate and a lawyer, I’ve spent the last few years fighting back against restrictive photo ID laws. I’ve gone door to door and to community centers to reach voters to ensure they know about their state’s identification requirements. You can find out here if you need identification to vote in your state.
 
While we don’t agree with strict photo ID laws, voter purges or unnecessarily long registration deadlines, we all need to be ready to vote in spite of these laws, so we can keep working together to make voting more accessible and secure. If your vote didn’t matter, elected officials wouldn’t try so hard to take it away.

Research your local races and ballot initiatives:

We’ve all heard so much about the presidential election at the top of our ballot, but it’s crucial to vote for every race — and initiative — on your ballot. Every candidate and question can have a big impact on civil rights and liberties. Ballots differ based on state and locality — with different candidates and questions, called ballot initiatives, which determine what kind of state you want to live in: a state that allows formerly incarcerated people to vote; a state that holds police accountable for brutality and killings; or a state that finally puts the nail in the coffin of racist Jim Crow-era laws. These questions were on the ballot for voters in Florida, Washington, and Louisiana, respectively, in the 2018 midterm elections, and Americans voted to move their state forward towards a country where We the People means all of us.
 
Elected prosecutors, or district attorneys, are some of the most influential actors in the criminal justice system. They decide who to charge with crimes, whether to offer a second chance or send someone to prison, and when to hold police accountable. Prosecutors’ decisions and their influence over local and state criminal justice laws have been one of the primary drivers of incarceration and racial disparities throughout the justice system. 
 
An elected sheriff, in most cases, has the authority to manage the local jail, arrest people, conduct traffic stops, collect fines, serve warrants, transport detained people, investigate crimes, and voluntarily cooperate with federal immigration enforcement. 
 
This year, Nebraska voters can decide to reduce predatory payday lending loan annual interest rates from 400 percent to a maximum of 36 percent. These payday lending loans, marketed as a short-term fix, are actually designed to trap borrowers in a cycle of long-term debt. Sixteen states and D.C. have already enacted rate caps of about 36 percent — and now Nebraskan voters have the chance to follow suit — the initiative from the Nebraskans for Responsible Lending turned in enough signatures to qualify for the November 3 ballot. 
 
Coloradans can fight to protect reproductive freedom and vote no on Proposition 115, a back-door ban that would criminalize abortion at 22 weeks. Prop 115 is an initiative of the same groups and politicians who have attacked the right to make the medical decisions that are right for us and want to ban abortion outright. If passed, Prop 115 will disproportionately harm Black, Indigenous, Latinx, LGBTQ+, low-income, and young individuals and families — the same marginalized communities who already face additional barriers and delays to accessing abortion care. Coloradans have rejected abortion bans on the ballot three times in the last 12 years; this year, a robust and growing list of organizations working on reproductive health, rights, and justice, as well as other issues, have already come out strongly in opposition to the ballot measure.
 
And in Oklahoma, voters can cast their ballot for State Question 805, a common-sense criminal justice reform that will limit extreme sentences for nonviolent crimes and save Oklahoma taxpayers $186 million. Oklahoma is handing down cruel and unfair sentences for minor crimes. A second conviction for breaking into a shed can result in a life sentence. In Oklahoma, an individual served 33 years in prison for writing $400 worth of bad checks, and a mother was sentenced to 15 years for stealing basic necessities and children’s toys from a Walmart. SQ 805 will limit sentences like these that are out of proportion to the crimes.
 
Cast an informed vote and research your candidates and ballot initiatives before casting your ballot.

Decide how you’ll cast your ballot:

This year, voters have more options than ever before on how to cast their ballot. Voting by mail might be the safest option for many voters, and over 83 percent of voters have that option this year. Most states allow voters to vote by mail every election cycle, and more have expanded access to vote by mail for the duration of the pandemic. Not sure how to vote by mail? We put together a guide on vote by mail for every state. And why wait for a good thing — you should request your ballot today. To ensure adequate time for delivery, leave ample time to request and return your ballot, as many states require that your ballot be received on or before Election Day. 
 
Voting early is another great option. Many states allow voters to cast their ballot two weeks or more before Election Day, meaning more flexibility to work around your schedule and shorter lines. You can also vote on November 3, but think of Election Day more like a deadline, not the only option! If you don’t have time before, haven’t received your ballot, or just like the tradition, you can head to your local polling place on Election Day, just remember to take the proper precautions and to vote like your rights depend on it.
 
America is worth fighting for, vote like it.

Paid for by American Civil Liberties Union, Inc., 125 Broad Street, New York, NY 10004, and authorized by Nebraskans for Responsible Lending.

Authorized and paid for by American Civil Liberties Union, Inc., 125 Broad Street, New York, NY 10004, 212-549-2500, on behalf of Yes on 805, Inc.

Paid for by American Civil Liberties Union, Inc., and authorized by Abortion Access for All.

Molly McGrath, Campaign Strategist for the National Political Advocacy Department, ACLU

Immigrant communities are often asked to “get right with the law,” but is the law right in the first place? That’s what Alina Das asks in her new book, No Justice in the Shadows. She delves into her experience as the daughter of immigrants, an immigration attorney, and a clinical law professor to explore the intersection of immigration and the criminal justice system.

Too often, she argues, our immigration system is used as a tool of discrimination and oppression, rather than as a tool of justice, and the consequences are dire. Our current immigration system is breaking up families, and forcing people to face persecution — even death — in their home countries, and it’s all based on a false premise of ensuring public safety and national security.

Das joins At Liberty this week to discuss her book, and how we need to fundamentally reenvision the immigration agencies in our country, which she says are ultimately charged with enforcing laws rooted in white supremacy.

The Myth of the "Bad" Immigrant

The Myth of the "Bad" Immigrant

Immigrant communities are often asked to “get right with the law,” but is the law right in the first place? That’s what our guest Alina Das asks in her new book No Justice in the Shadows. She taps her experience as the daughter of immigrants and a...

Immigrant communities are often asked to “get right with the law,” but is the law right in the first place? That’s what our guest Alina Das asks in her new book No Justice in the Shadows. She taps her experience as the daughter of immigrants and a...

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Earlier this month, Mississippi federal court judge Carlton Reeves reluctantly held that a white police officer who detained, interrogated, and illegally searched Clarence Jamison, a Black man driving a Mercedes-Benz, for nearly two hours despite clearing multiple background checks, could not be held accountable for his actions. Why? Because his hands were tied by qualified immunity. Judge Reeves relates his frustration in his opinion:
 
“Judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called ‘qualified immunity.’ In real life it operates like absolute immunity.”
 
Qualified immunity is a legal defense that can shield police officers from liability for misconduct. Once an obscure legal doctrine, it has become a central focus of activists’ calls for police accountability following nationwide protests over police brutality. In fact, officer Derek Chauvin, the cop who killed George Floyd by kneeling on his neck for over eight minutes in a video seen around the world, might evade accountability in a civil suit through qualified immunity.
 
The Supreme Court created the first version of this defense more than 50 years ago as a limited amendment to the Civil Rights Act of 1871, also known as the “Ku Klux Act” because it was meant to protect the rights of freed slaves after the Civil War in the face of the Klan’s reign of terror. Under Section 1 of the act, now referred to as Section 1983, people were given the right to sue state government officials for violating their constitutional rights and hold them liable for damages.
 
Starting in 1967, though, the court amended the law — officers would be shielded from liability if they could show that they acted in “good faith” and had “probable cause” for their actions. Over time, the court has stretched the doctrine to where it is today: An officer who has violated the Constitution cannot be held liable for damages unless the violation was so “clearly established” in the law that any reasonable officer would have known that their actions were unlawful. This requirement is nowhere to be found in the Constitution or any federal statute. Nevertheless, the Supreme Court has developed an absurdly narrow definition of what counts as “clearly established” law.     
 
To meet the “clearly established” standard, the burden is now on the victim to find a previous case with facts nearly identical to their own. This is the burden that fell on Alexander Baxter, whom the ACLU represented in a petition that the Supreme Court recently denied. Mr. Baxter, homeless at the time of his arrest, was chased by two Nashville police officers and a police dog into a basement following a report of a residential burglary in 2014. Once there, Mr. Baxter surrendered by sitting on the ground and raising his hands into the air. Still, the officers unleashed the dog, which bit Mr. Baxter’s armpit, sending him to the hospital for immediate medical attention.
 
Without formal legal assistance and with limited access to the prison’s law library, Mr. Baxter later filed a hand-written complaint from prison, but a federal appeals court granted qualified immunity to the officer. The reason for qualified immunity? Mr. Baxter surrendered by sitting on the ground with his hands up, whereas in the closest prior case, the court ruled in favor of a victim who surrendered by lying down.
 
Yep, that’s it. Because Mr. Baxter could not point to a previously decided case where the suspect had also surrendered by sitting down with his hands up, the officer was off the hook. According to the Sixth Circuit Court of Appeals, without a case with identical circumstances, there was no way for the officer to clearly know that what he did was wrong.
 
But it’s even more problematic than that. Because the Sixth Circuit did not reach the question of whether the conduct was, in fact, illegal, the law still doesn’t clearly establish that police may not order a canine attack on a suspect who surrenders by putting their hands up. This means another officer could claim immunity for the same behavior in the future. It’s a never-ending catch-22: A victim must cite exact legal precedent to win their case, but because judges dismiss so many cases over slight twists of facts without deciding whether the underlying government conduct is unconstitutional, it’s increasingly difficult to create any legal precedent.
 
As District Court Judge Reeves writes in his powerful opinion, “Let us not be fooled by legal jargon. Immunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine.”
 
Qualified immunity is one reason why police are emboldened to use excessive force without fear of repercussions. They know the law protects them, even if they may be violating the Constitution — a fact driven home by Judge Reeves as he lists a handful of the Black people killed at the hands of police. Senseless shootings like Jacob Blake’s and Dijon Kizzee’s will continue occurring because police officers are essentially allowed to gun down Black people with impunity. This is the abhorrent cost our society pays for qualified immunity.
 
Still, there is hope. More lower courts and even Supreme Court justices themselves are starting to question the doctrine, as indicated by Justice Thomas’ dissent from the Court’s decision not to take up Mr. Baxter’s case. It is no longer blindly accepted that the need to shield police officers from financial burden is more important than the need to hold them accountable and protect the rule of law. In fact, officers are virtually never at risk of monetary liability and have contributed to payments in less than one-half of 1 percent of civil rights damages actions. Most costs are paid by municipalities, insurance companies, or unions.
 
The Supreme Court should abolish qualified immunity and return Section 1983 to its original meaning. At the very least, it needs to give guidance to lower courts to make clear that a case with identical facts is not necessary to hold officers liable for their conduct. While these reforms will never repair the harm done to many lives or heal the trauma Mr. Baxter experienced, they will deter future police unlawfulness and, when such abuse occurs, increase the chances that its victims are compensated for the harms suffered.
 
Communities must also demand that other actors — Congress, police chiefs, mayors, and prosecutors — abolish the doctrine and begin funneling resources away from law enforcement and into community services like housing, education, accessible health care, and violence prevention programs. If we truly want systemic changes to policing, these are the institutions that will help communities grow and thrive.

April Rodriguez, Paralegal, ACLU Criminal Law Reform Project