This year was another of devastating attacks on immigrants’ rights by the Trump administration. However, in both red and blue states, we fought and won new measures that stymie Trump’s deportation machine. These local wins, though often overshadowed by the president’s xenophobia, are powerful. Here are some of the most surprising and significant of our 2019 immigrant justice victories in the states.

In Michigan, a former marine’s arrest prompts police reform

Grand Rapids, Michigan police kept veteran and U.S. citizen Jilmar Ramos-Gomez in immigration detention for 3 days — even though he was carrying his U.S. passport when he was arrested. The stunning case prompted a public outcry. Following advocacy by the ACLU of Michigan, the Grand Rapids Police Department issued a new policy prohibiting police stops and interrogations based solely on suspected violations of immigration law; and the Kent County Sheriff issued a new policy requiring a judicial warrant for all Immigration and Customs Enforcement detainees.

A landmark 60 Massachusetts localities have opted out of ICE collaboration

Years into an effort to end the entanglement of state and local police collaboration with ICE, the number of Massachusetts towns and counties opting out of ICE collaboration has reached 60. The latest: In November, the rural community of Greenfield — home to many undocumented farm workers —overrode the mayor’s veto to pass a Safe City ordinance. This policy stops police from asking about immigration status and prohibits giving ICE information about people in local custody. Shortly after the decisive victory, opponents tried to repeal the ordinance through a ballot initiative, but the ACLU of Massachusetts worked with a broad coalition on the ground to defeat it.

New Jersey makes statewide advances on immigrant justice

The New Jersey Attorney General issued a major directive: New Jersey’s counties can no longer participate in 287(g) agreements, which allow ICE to deputize local law enforcement as federal immigration officers. These agreements have a record of contributing to racial profiling and the harassment of immigrant communities. Additionally, the state legislature approved a 50 percent increase in funding for free legal counsel to people detained in New Jersey who face potential deportation. Finally, the governor signed a bill severely restricting the use of solitary confinement in state prisons and county jails, including those that detain immigrants.

Las Vegas and Nashville sheriffs end anti-immigrant agreements

The Las Vegas, Nevada police department withdrew from its 287(g) agreement with ICE and announced it will end its practice of honoring ICE detainers, prompted by the ACLU of Nevada and several groups. The sheriff in Nashville, Tennessee ended a rent-a-bed program that allowed ICE to use the local jail for immigration detention.

New York and Oregon make driver’s licenses accessible to all

Across the country, hundreds of thousands of undocumented people struggle to get to work and take their children to school because they don’t have access to driver’s licenses. Driving without a license can lead to their arrest, detention, and deportation. Expanding access to driver’s licenses to all eligible individuals regardless of immigration status is good for public safety because it ensures more people on our roads are tested, trained, and qualified. New York passed a driver’s licenses for all bill in June and Oregon did so in July. Now there are a total of 14 states making driver’s licenses eligible to residents regardless of immigration status, plus D.C. and Puerto Rico.

Nebraska school districts agree to anti-discrimination measures

Following an ACLU of Nebraska report on barriers to immigrant and refugee kids registering and enrolling in school, major school districts in Omaha, Norfolk, and Crete agreed to make changes. The state’s Department of Education is beginning to develop new regulations in response to the report.

Utah, Colorado, and New York pass laws to protect non-citizens from deportation

This spring, Utah became one of the few Republican-led states to pass a so-called 364-day law. Colorado and New York passed similar bills. These measures reduce the maximum jail sentence for misdemeanor offenses by one day, from 365 to 364 days, protecting immigrants from serious consequences imposed by federal immigration law that kick in at 365 days or more — even if the person’s actual sentence is just a few days. Those consequences include detention, deportation, and loss of opportunity for individuals to adjust their immigration status. These reform measures ensure that convictions for minor offenses like shoplifting don’t carry devastating consequences.

There are a lot more wins, including major reform legislation in California, Illinois, and Washington.

The threat to immigrants’ rights is far from over. Still, we can expect that states will continue to take action as public opinion evolves on immigrants’ rights. Six in 10 Americans now oppose the Trump administration’s agenda of deporting immigrants without lawful status. In 2019, state and local officials got the message: Our communities must and will fight back.

Naureen Shah, Senior Advocacy and Policy Counsel, ACLU

The Senate this week held a hearing examining the first comprehensive privacy proposals to come from the leaders of the Senate Committee on Commerce, Science, and Transportation. The bills are likely to set the tone for much-anticipated final legislation safeguarding our privacy rights online.

Neither bill is perfect. But the Consumer Privacy Online Rights Act — introduced by Sen. Maria Cantwell, D-Wash. — offers a strong first step. The bill from Sen. Roger Wicker, R-Miss., the U.S. Consumer Data Privacy Act of 2019, has several glaring deficiencies and should not move forward without significant improvement. 

Here’s how the two bills stack up on key issues: 

Preserving State-Level Privacy Protections

Sen. Cantwell’s bill preserves the rights of states to pass stronger privacy laws. States have often led the work to protect consumer privacy. While Congress has yet to act, California has passed comprehensive privacy legislation, Illinois has taken steps to safeguard our face and other biometric information, and Maine has limited how internet service providers can collect and use our information. Recognizing the important role states play in protecting our privacy, Sen. Cantwell’s bill makes clear that federal privacy legislation must serve as a floor — not a ceiling — leaving states free to pass laws that provide stronger protections.

By contrast, Sen. Wicker’s draft legislation would completely gut existing state privacy laws and prevent states from passing stronger laws in the future. Companies could use the legislation — if it were to become law — in efforts to gut existing state privacy laws, like the California law, and stop states from putting in place more stringent privacy protections. This would negatively impact states’ ability to protect the privacy rights of their residents. 

Strong Enforcement Mechanisms

As recent settlements with the Federal Trade Commission have demonstrated, federal fines for privacy-violating companies are often simply viewed as the cost of doing business, not a call to change harmful practices. To make privacy protections meaningful, consumers should be able to sue those companies for damages, and the FTC should have the authority to levy civil penalties and to set strong privacy rules.

Sen. Cantwell’s bill offers a strong approach. In addition to beefing up the authorities and resources of the Federal Trade Commission, the bill allows private citizens to sue companies who violate their privacy rights. Recognizing the difficulty in quantifying the cost of a privacy harm, the bill specifies the damages available to individuals per violation, and allows for the award of punitive damages, as appropriate. 

Sen. Wicker’s bill provides no such right. Instead, the bill leaves enforcement entirely to state attorneys general and the FTC, though the latter has increased authorities. This is simply not enough and is likely to lead to significantly weak enforcement, stranding people who have been harmed with no recourse.

Preventing Online Discrimination

It’s imperative that Congress act to stop discrimination from taking on new life in the 21st century. To that end, Sen. Cantwell’s bill includes provisions that would prohibit the use of data to discriminate in housing, employment, credit, education, or public accommodations, and permits the FTC to enforce the prohibition. In addition, the bill would require data operators to conduct impact assessments to measure potential discrimination stemming from their use of an algorithm. As the bill advances, these provisions should be improved to provide other agencies, like the Consumer Financial Protection Bureau and Department of Housing and Urban Development, the ability to monitor and take enforcement action against companies that violate these provisions. 

Sen. Wicker’s bill positively acknowledges that companies’ use of data to discriminate in ways that violate existing anti-discrimination laws is a problem that needs to be addressed. It requires some operators to conduct impact assessments and stipulates that the FTC may refer cases of discrimination to the appropriate state and federal agencies, an authority that the FTC already has in many contexts. This, falls far short of what is needed to prevent discrimination in the online ecosystem and is inferior to the approach in Sen. Cantwell’s bill.

Clear and Strong Data Usage Rules

Consumers should have control over their data. To that end, both bills prohibit companies from sharing data without an explicit opt-in for sensitive data, or opt-out for other types of data. Both also give consumers the right to access, correct, and request the deletion of their information. Sen. Cantwell’s bill would even prohibit companies from denying services or charging someone more if they choose to exercise their privacy rights.

The two bills, however, make an artificial distinction between sensitive and non-sensitive data, with the former afforded greater privacy protections. Personal data is personal, which means the value ascribed to certain data varies by individual. For one person, information about their race may be deeply sensitive. For another, this information may already be widely available, yet information about their reading or buying habits may be more personally revealing. Privacy legislation should afford a high level of protection to all information without distinction.

We encourage members of Congress to continue working together to enact legislation that protects our data, preserves state laws that provide greater protections, and gives people the ability to enforce their privacy rights. Consumers are counting on it to take action to protect their data.

Neema Singh Guliani, ACLU Senior Legislative Counsel
& Kate Ruane, Senior Legislative Counsel, ACLU

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