Order Issued After ACLU Challenge
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COLUMBIA, SC – A federal court in South Carolina today blocked implementation of the state's requirement that political candidates formally notify the state elections commission, in advance of the primary election, of each party that might choose to nominate them and whose nomination they may seek. The court issued the injunction after the American Civil Liberties Union filed a lawsuit charging that the requirement violates the preclearance provisions of Section 5 of the Voting Rights Act, and that it severely impairs alternative political parties' ability to get their candidates on the ballot in violation of the free speech protections of U.S. Constitution.
"The evidence clearly supports the court's conclusion that the state failed to comply with the Voting Rights Act," said Laughlin McDonald, Director of the ACLU Voting Rights Project. "Many alternative parties do not choose a candidate until after the major parties have their primaries. Requiring candidates to submit their intention to run for each party before the primaries makes it virtually impossible for alternative parties to have the candidate of their choice on the ballot."
South Carolina is one of only a handful of states that permit fusion voting, allowing multiple political parties to nominate the same candidate. However, requiring Statement of Intention of Candidacy forms prior to the primaries has the practical effect of barring electoral fusion because alternative parties, which often choose to cross-nominate the winner of a major political party's primary, cannot know who the major party candidate in the general election will be before the primaries actually take place, and cannot put a candidate who hasn't filed multiple intention forms on its ballot.
The South Carolina State Elections Commission did not require multiple Statement of Intention of Candidacy forms until April 2008. Prior to that date, only one form was required stating a candidate's intention to run for a particular party, but candidates could run for any other party that wished to cross-nominate them. The ACLU charges that the change is unlawful because South Carolina has a history of discrimination in its voting procedures, and Section 5 of the Voting Rights Act requires that all changes the state wishes to implement must first be precleared by the federal government.
The ACLU also charges that the requirement imposes an unjustified burden on the First Amendment's free speech and association rights of candidates as well as political parties and voters to select the preferred candidates of their choice.
"South Carolina's requirement rejects the First Amendment's fundamental protections and effectively blocks fusion voting in the state," said Bryan Sells, staff attorney with the ACLU Voting Rights Project. "Today's order by the federal court protects the democratic process and the voters of South Carolina."
Attorneys on the case are McDonald and Sells of the ACLU Voting Rights Project.
The U. S. District Court for the District of South Carolina's ruling in the case, Gray et al v. South Carolina State Election Commission et al, is available at: www.aclu.org/voting-rights/gray-et-al-v-south-carolina-state-election-commission-et-al-order
The ACLU's complaint in the case is available at: www.aclu.org/voting-rights/gray-et-al-v-south-carolina-state-election-commission-et-al-complaint
More information on the work of the ACLU Voting Rights Project is available at: www.votingrights.org
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ANCHORAGE, Alaska – The Alaska Attorney General's Office today joined the Native American Rights Fund (NARF), the American Civil Liberties Union, the Northern Justice Project, four Alaska Native elders and four tribal governments in announcing a settlement of litigation in Nick, et al. v. Bethel, et al. According to the settlement, the state of Alaska will make enhancements to language assistance for Yup'ik-speaking voters available at elections in the Bethel area.
The resolution of the case, originally filed in June 2007 on behalf of Alaska Native elders Anna Nick, Billy McCann, Arthur Nelson and David O. David and the tribal governments of Kasigluk, Kwigillingok, Tuluksak and Tuntutuliak, was welcomed by all parties involved.
"We are committed to equality under the law and fair voting practices and effective access to the voting booth for all Alaskans," said Alaska Attorney General Dan Sullivan. "We will vigorously implement the terms of this settlement."
The settlement recognizes improvements to language-assistance protocols implemented by the state during the 2008 and 2009 elections, while providing for enhancements designed to ensure that limited-English-proficient voters receive effective assistance.
"We are extremely pleased the state of Alaska will provide Yup'ik-speaking voters in the Bethel area with the tools they need to fully participate in the political process," said Natalie Landreth of NARF. "That is what this case was all about – equal access to the polls."
"Our right to vote is one of the most important that we as Americans possess," said Alaska Lieutenant Governor Craig Campbell, who oversees the Division of Elections. "Here in Alaska, we want all our citizens to exercise that right, regardless of where they live or the language they speak. We are pleased to have come together to ensure that this case is a win-win for Yup'ik-speaking voters and the state of Alaska."
"Every American deserves an equal voice in the political process," said Laughlin McDonald, Director of the ACLU Voting Rights Project. "The Constitution protects all Alaskans' right to vote regardless of what language they speak."
Key protocols for the Division of Elections include:
"I have said all along that all we wanted was to be able to understand what we are voting for. Now that will happen, and I am very, very happy," said Billy McCann, a plaintiff in the case. "Being a plaintiff is not easy, but when you come together to fix a problem like this, it is worth it."
State of Alaska attorneys who worked on the case are Gilman Dana S. Burke, Sarah J. Felix, Margaret A. Paton-Walsh and Michael Barnhill.
Attorneys for the plaintiffs are Natalie Landreth of NARF, Laughlin McDonald of the ACLU Voting Rights Project, James J. Davis, Jr. of Northern Justice Project, Dr. James T. Tucker, and attorneys from the ACLU of Alaska.
The settlement agreement in the case can be found online at: www.aclu.org/voting-rights/nick-et-al-v-bethel-et-al-settlement-agreement-state-alaska
ACLU, AAUP And NCAC File Brief Urging Court To Uphold First Amendment In Ward Churchill Case
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NEW YORK – The American Civil Liberties Union, ACLU of Colorado, American Association of University Professors (AAUP) and National Coalition Against Censorship (NCAC) today submitted a brief to a Colorado Court of Appeals arguing that the University of Colorado, a publicly funded university, should reinstate a tenured professor who was wrongly terminated from his job there for exercising his right to free speech.
"The First Amendment prohibits public officials from suppressing lawful speech or retaliating against those who engage in such speech, no matter how unpopular or offensive the speech may be to some people," said Aden Fine, staff attorney with the ACLU First Amendment Working Group. "That is especially the case in the university setting, where the Supreme Court has made clear that First Amendment freedoms must be vigilantly protected."
After he was fired from the teaching post he had held for many years, Ward Churchill sued the University and its Board of Regents alleging that he was unconstitutionally terminated because of a controversial and unpopular essay he had written concerning the events on September 11. In April 2009, a jury agreed that Churchill was fired for expressing his personal opinions, which is a clear violation of his First Amendment rights.
However, a judge denied Churchill's petition to be reinstated to his job, essentially denying him any relief for the blatant denial of his rights. Churchill is appealing that decision to the Colorado Court of Appeals. The ACLU, ACLU of Colorado, AAUP and NCAC filed a friend-of-the-court brief supporting reversal of the trial court's decision, arguing that plaintiffs whose constitutional rights have been violated must be provided with a remedy, and that in this case, Churchill should be reinstated to the job from which he was wrongly fired.
"Denying a remedy to people whose rights have been violated amounts to gutting the Constitution," said Mariko Hirose, a legal fellow with the ACLU First Amendment Working Group. "The court has a responsibility to ensure the University of Colorado rights its wrong and reinstates Professor Churchill immediately."
"Unless the trial court's ruling is corrected, university professors will receive the chilling message that silence is smart and voicing unpopular views can be fatal to their careers," said Mark Silverstein, ACLU of Colorado Legal Director. "The First Amendment right to speak out is meaningful only if it is enforceable in court."
Today's friend-of-the-court brief is available online at: www.aclu.org/free-speech/ward-churchill-v-university-colorado-et-al-amicus-brief
Attorneys include Fine and Hirose of the ACLU First Amendment Working Group, Silverstein of the ACLU of Colorado, Rachel Levinson of AAUP and Joan Bertin of NCAC.
Groups And Prominent Authors Say Settlement Doesn't Protect Free Speech Or User Privacy
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NEW YORK – The American Civil Liberties Union, Electronic Frontier Foundation (EFF) and Samuelson Law, Technology, and Public Policy Clinic at the University of California, Berkeley, School of Law are in federal court today urging a judge to reject the proposed settlement in a lawsuit over Google Book Search because it does not include critical privacy protections for users of the online book materials. The groups filed an objection to the settlement in September 2009 on behalf of a coalition of more than two dozen authors and publishers, including ACLU Executive Director Anthony D. Romero and best-selling novelists Michael Chabon and Jonathan Lethem.
"As digital book programs like Google Book Search advance, more and more people will turn to the Internet for their reading needs. Readers should be able to expect as much privacy when they're reading a book on a Web site as they do in a library or bookstore," said Aden Fine, staff attorney with the ACLU First Amendment Working Group. "People should feel that they are free to read on the Internet without being monitored by private companies or the government."
The objection arose over the proposed settlement of a 2005 class action lawsuit, The Authors Guild, Inc., et al. v. Google Inc., currently pending approval in the U.S. District Court for the Southern District of New York. The settlement would allow Google to scan and digitize millions of books and make them available to readers online, ending the legal challenges brought by the Authors' Guild and others over the Google Book Search project. The coalition of authors and publishers who object to the settlement charge that it fails to include critical privacy and speech protections concerning the collection and potential disclosure of personally identifying information about Google Book Search users, and that this failure to protect privacy will chill their readership. They are urging Judge Denny Chin of the Southern District to reject the settlement.
Because the settlement does not contain any privacy protections for users, Google's system will be able to monitor which books users search for, which pages of the books they read and how long they spend on each page. Google could then combine information about readers' habits and interests with additional information it collects from other Google services, creating a massive "digital dossier" that would be highly tempting and possibly vulnerable to fishing expeditions by law enforcement or civil litigants.
"Advancements in technology should not come at the expense of Americans' privacy," said Fine. "The court should ensure that the same privacy and speech protections available to readers in libraries and bookstores are part of this settlement, to ensure that readers in the digital age continue to have the same rights they've always had."
The objection filed in September includes a list of privacy protections that would improve the settlement, including requiring a court order or judge-approved warrant before disclosure of any information collected and limiting the amount of time that the information can be retained.
Attorneys who filed the objection are Fine of the ACLU, Cindy Cohn of EFF and Jennifer Lynch and Jason Schultz of the Samuelson Clinic.
The filing is available online at: www.aclu.org/freespeech/gen/40934lgl20090908.html
More information about the case is available at: www.aclunc.org/googlebooks and www.eff.org/cases/authors-guild-v-google
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West Palm Beach, Fla. – The American Civil Liberties Union of Florida filed a federal lawsuit today against the City of West Palm Beach, West Palm Beach Community Redevelopment Agency, and CityPlace Community Redevelopment District on behalf of Bruce Kevin Bates, a street artist who was unlawfully prohibited from using a public area to create his art.
Bates regularly sets up his portable easel and chair at the south end of Harriet Himmel Theater, in a publicly owned plaza at CityPlace, an upscale outdoor mixed use mall, whose Web site characterizes it as "reminiscent of an Italian town center." Bates' easel was out of the way of foot traffic, and he positioned himself there to paint the city scenes in front of him.
On August 29, 2009, a West Palm Beach police officer and the head of CityPlace security approached Bates and told him that he was trespassing on private property and that he needed to leave. When Bates refused, the officer issued a trespass warning to Bates, threatening to arrest the artist if he is found again within the City Place Plaza area. As a result, Bates has not returned to CityPlace, even though he prefers the ambiance and architecture for his art.
The ACLU of Florida argues in the lawsuit that the Plaza and adjacent streets and sidewalks are public property, and therefore the policies limiting expression are unconstitutional. The land is owned by the CRA and leased to the district, which issued tax exempt municipal bonds to construct the Plaza and surrounding areas.
"The public plaza is an urban park in the middle of CityPlace. Pedestrians walk through the area on their way to different destinations in and around the plaza, and it is open to the public for regular and everyday use. Musicians play there on a weekly, if not daily basis," said James K. Green, a West Palm Beach attorney and cooperating counsel with the ACLU. "The First Amendment cannot be curtailed in the public arena without a compelling reason, and the only reason that appears to exist here is that the city doesn't want Mr. Bates to paint in CityPlace—that's not a compelling government interest and is downright unconstitutional."
The ACLU of Florida is asking the court to rule that the defendants violated Bates' First Amendment right to freedom of expression, and to rule that the policies created by the CRA and District to regulate public use of the CityPlace Plaza and adjacent streets and sidewalks are unconstitutional.
View photos of Bates here: www.aclufl.org/news_events/gallery/index.cfm?action=viewGallery&entryID=55
Download a PDF of the complaint filed in federal court here: www.aclufl.org/pdfs/Bates.pdf
Speaker Budish Should Reconsider Ban on 'Controversial' Awards
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COLUMBUS - The American Civil Liberties Union of Ohio urged House Speaker Armond Budish (D-Beachwood) to re-assess his decision to block certain groups or individuals from being recognized on the floor of the Ohio House. Elizabeth Trisler, a Shelby County teen who recently won an oratory contest sponsored by National Right to Life, was scheduled to be presented with a proclamation by state Rep. John Adams (R-Sidney) on February 3. Speaker Budish decided Ms. Trisler should not be honored on the House floor because he believed it could be divisive.
"By declining to recognize Ms. Trisler's achievement, Speaker Budish has created a troubling precedent that anyone who is deemed 'controversial' by House leadership will not be honored," said ACLU of Ohio Executive Director Christine Link. "Legislators should pay tribute to those who excel in their field, regardless of their political views or affiliations. This decision could cause legislators to second guess issuing proclamations for many Ohioans."
"Perhaps what is more troubling is the message this sends to Ms. Trisler and other young activists like her," added Link. "Instead of teaching young people that the answer is to silence those who disagree with us, legislators should be modeling how to address difficult issues thoughtfully and listen respectfully to others."
Since January 2009, the Ohio House has issued 217 resolutions honoring individuals or organizations. 43 have had their proclamation delivered to them to the House floor. Most of the honorees were athletes or sports teams; however, other individuals such as Miss Wheelchair Ohio and the winner of the 2009 MLK Statewide Oratorical Contest were recognized.
"Ohio has a diverse political and social landscape that includes a broad spectrum of views that may be controversial to some. If we limit whose achievements may be honored, we are only contributing to the notion that these issues are divisive and cannot reasonably be discussed. If anything, the House should expand who they choose to honor in order to recognize the accomplishments of those from a range of political and social viewpoints," concluded Link.
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SIOUX FALLS, SD – The American Civil Liberties Union filed an amended class action lawsuit in federal court today to restore the voting rights of American Indians who were illegally disfranchised in the 2008 presidential election. The lawsuit was filed in the U.S. District Court for the Western District of South Dakota on behalf of Kim Colhoff, Eileen Janis and others, who attempted to vote in the election but were improperly removed from the voter rolls due to felony convictions. Because state law only disfranchises individuals sentenced to prison and both women were just sentenced to probation, election officials unlawfully took away their voting rights.
"Felony disfranchisement laws in South Dakota have a disproportionate impact on American Indians, who represent the majority of those convicted of felonies at the federal level," said Robert Doody, Executive Director of the ACLU, South Dakota Chapter. "Worse still, it's clear that confusion regarding the South Dakota felony disfranchisement laws has resulted in legitimate voters, even those who haven't been incarcerated for felony convictions, being purged from the rolls or denied the ability to register to vote or cast their ballots."
The lawsuit charges that South Dakota officials' illegal disfranchisement of individuals with felony convictions has had a disproportionate and negative impact on American Indian voters who are overly represented in South Dakota's criminal justice system. The lawsuit also contends that the removal of individuals' names from the state and county voter registration lists based on felony convictions for which they were sentenced only to probation violates their rights to equal protection and due process under the federal and state constitutions, the Help America Vote Act, the National Voter Registration Act and Sections 2 and 5 of the Voting Rights Act. The lawsuit names Secretary of State Chris Nelson, Shannon County Auditor Sue Ganje and members of the state board of elections as defendants.
The ACLU originally filed the lawsuit in February 2009 on behalf of Colhoff and Janis. The amended lawsuit filed today represents a class of individuals in South Dakota with felony convictions who were denied the right to vote despite the fact that they were never incarcerated.
Colhoff and Janis, both residents of Pine Ridge, South Dakota, registered to vote for the first time in 1974 and 1984, respectively, and remained on the voter rolls until early 2008, after they were each convicted of a felony offense and sentenced to five years probation but no jail time. Despite the fact that South Dakota only disfranchises those sentenced to prison, Colhoff and Janis were removed from the voter rolls without any notice and denied the right to vote at their polling places when they attempted to vote in the 2008 presidential election. In front of several other voters, election officials refused to allow Janis to cast either a regular or provisional ballot.
"I will never get the chance to go back and make my voice heard," said Janis. "It deeply disturbs me that my right to vote was taken away because of administrative incompetence. No one should be denied a ballot just because election workers don't understand the rules. It's really hard not feeling like a second-class citizen when one of my most fundamental rights has been stolen from me."
"What happened to our clients represents the tragedy that occurs when election officials do not know how to administer the law," said Nancy Abudu, senior staff attorney with the ACLU Voting Rights Project. "Not only did election administrators take away their constitutional rights, but they robbed them of the opportunity to participate in this historic election."
Attorneys on this case are Abudu, Bryan Sells and Laughlin McDonald of the ACLU Voting Rights Project; Doody of the ACLU, South Dakota Chapter; and cooperating attorney Patrick Duffy.
A copy of today's proposed second amended complaint in Janis v. Nelson is available at: www.aclu.org/racial-justice-voting-rights/janis-v-nelson-second-amended-complaint-pending-court-approval-requesti
An ACLU report providing a historical overview of systemic discrimination against American Indians, limiting their ability to participate in local, state and national elections, can be found at: www.aclu.org/votingrights/minority/41203pub20090930.html
More information about the ACLU Voting Rights Project is available at: www.votingrights.org
ACLU of Louisiana demands that student's record be restored
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NEW ORLEANS – Today the Principal of Maurepas High School, which had declared that students could wear jerseys in support of the New Orleans Saints, punished a student for wearing a jersey in support of the Indianapolis Colts. The student, who had lived most of his life in Indianapolis and has an outstanding academic record, was called out of class and told that he was not allowed to wear that shirt. When he refused to change his shirt, the Principal sent him home.
The ACLU of Louisiana has sent a letter to the Principal, Steven Vampran, demanding that the school restore the student's record and erase any mention of disciplinary action that may have been taken because he chose to support a team that is not the Principals' favorite. "Students do not give up their free speech rights at the schoolhouse gate," said ACLU of Louisiana Executive Director Marjorie R. Esman. "To allow students to express support of one team but not the other amounts to forcing support of the team that the Principal likes. As excited as people are about the Saints going to the Super Bowl, students like everyone else have the right to choose which team they prefer."
The student in question recently joined the National Guard, to protect this country and its founding beliefs. The right to free expression – including cheering for a football team – is one of those fundamental rights. Esman continued: "The school should be proud of this young man and his commitment to his country and the rights we enjoy. And, after all, it takes two teams to play a football game, and fans of both sides are entitled to cheer."
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ST. LOUIS -- In a consent judgment entered today by the United States District Court for the Eastern District of Missouri, the City of St. Louis and the St. Louis Metropolitan Police Department are ordered to stop enforcing a St. Louis City ordinance that criminalized the placement of political leaflets on vehicles parked on public streets.
The order comes in a lawsuit filed by the American Civil Liberties Union of Eastern Missouri (ACLU-EM) in December 2009 that alleged a city ordinance prohibiting such behavior is a violation of free speech. Under existing precedent, the ban on leaflets "would be interpreted as an infringement upon the First Amendment speech rights of Plaintiffs and other non-parties to this litigation," according to the judgment.
The plaintiffs in the case are members of Citizens for More Responsible St. Louis City Government. The group had been publicizing a petition drive that would have allowed city voters to affirm or reject a city ordinance in support of the controversial Northside Development plan. As outreach in their effort, the plaintiffs were placing flyers on the windshields of cars parked on public streets. This activity put them in conflict with city ordinance 11.18.180, which states, "No person shall throw or deposit any commercial or noncommercial handbill in or upon any vehicle without the owner's consent."
"There is a long established right to free political speech while on public property. The flyers in question are clearly political in nature," said Anthony Rothert, legal director of the ACLU of Eastern Missouri. "Our clients feared that any future leafleting activity may result in their arrest. Today's consent judgment ensures that their right to expression will not be suppressed."
ACLU-EM Executive Director Brenda Jones applauded the City of St. Louis for bring the case to a quick resolution: "We appreciate the recognition of the important constitutional rights at stake and the willingness to resolve this matter quickly and amicably."
Under terms of the consent judgment, the City of St. Louis will not enforce the ordinance, take all necessary steps to ensure that the ordinance is removed from law enforcement charge codes, and will make all police officers and park rangers aware of the order.
The plaintiffs were represented in this case by ACLU-EM cooperating attorney Nathan Howard in addition to Rothert.
The complaint and consent judgment are available for viewing on the ACLU of Eastern Missouri's website at: www.aclu-em.org/moore
ACLU Sues to Protect His Rights
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CLERMONT, Fla. – The American Civil Liberties Union of Florida filed a federal lawsuit today against the City of Clermont on behalf of local businessman Wayne E. Weatherbee, owner of Bee's Auto located in Clermont. According to the lawsuit, City officials have unconstitutionally targeted Weatherbee, attempting to suppress his free speech.
In October 2009, Weatherbee erected 12 signs on his business property in political protest against the City, which he claims selectively enforced its laws against him and his business, including falsely arresting him. One of the signs reads: "ACLU WHERE ARE YOU."
Beginning Tuesday, February 2, the City began imposing a $75/day fine on Bee's Auto until the signs are removed or Weatherbee obtains a permit.
The ACLU's lawsuit asserts that the City's ordinance regarding signage is unconstitutional and that officials are unconstitutionally applying it to Bee's Auto. "The City's code would allow, without any permit, a sign that urged viewers to 'Vote for Crist for Senate,' but would require a permit for one that read 'Impeach Crist,'" said Maria Kayanan, ACLU of Florida Associate Legal Director. "The City is regulating protected political speech based on its content, with no compelling reason. The City also allows, without any permits or limits on size or number, holiday decorations – so an Easter bunny or an inflatable reindeer gets more protection under the Code than Mr. Weatherbee's political speech - that's a clear violation of the First Amendment."
Through the lawsuit, the ACLU is seeking for the court to strike down The City of Clermont's unconstitutional signage ordinance, and prevent the City from further levying fines or collecting past fines placed on Mr. Weatherbee and Bee's Auto, thus restoring the constitutional right to engage in political speech in Clermont.
"The City's actions are abusive. Since at least 2007, the City of Clermont has been on notice that the code violates the First Amendment's protection of political speech," said Derek B. Brett, ACLU cooperating attorney in Orlando and Professor of Constitutional Law at the University of Central Florida. "In 2007, the City demanded that Clermont residents obtain a permit and fee for a 'Ron Paul for President' sign on their lawn. In that case, a 'cease and desist' letter from the ACLU resolved the issue. Clearly the City didn't learn, and continues to violate the First Amendment."
View photos of the signs erected at Bee's Auto here: www.aclufl.org/news_events/gallery/index.cfm?action=viewGallery&entryID=54
For a description of the signs erected at Bee's Auto, download a PDF of the Complaint filed today in federal court here: www.aclufl.org/pdfs/weatherbeecomplaint.pdf
View the ACLU's 2007 letter to the City of Clermont about political speech here: www.aclufl.org/news_events/?action=viewRelease&emailAlertID=2947
Bee's Auto vs. City of Clermont was filed in U.S. District Court, Middle District of Florida, Ocala Division. Attorneys leading the case include Derek B. Brett, ACLU cooperating attorney; and Maria Kayanan and Randall Marshall, both of the ACLU of Florida.
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PHOENIX – The American Civil Liberties Union of Arizona today announced the winners of a high school essay contest about the Constitution and the meaning of the First Amendment.
The contest, which was sponsored by the Southern and University of Arizona Law College chapters of the ACLU of Arizona, asked students in grades 9 through 12 to write essays about "What the First Amendment means to you." It was developed as a way to encourage students to think about the importance of advancing and protecting civil liberties.
"The Bill of Rights guarantees that the government can never deprive people of their fundamental rights, and it doesn't just apply to adults; it applies to young people too," said Mary-Carol Wagner, Chair of the ACLU of Arizona Southern Chapter. "We wanted to encourage students to think and write about how the Constitution affects their daily lives."
The winners are: Rachel Ellsworth, senior at Mesa High School, First Place $500 prize; Laura Maillard, senior at Tanque Verde High School, Second Place $250 prize; and John Nussmeier, also a senior at Tanque Verde High School, third place $100 prize.
The three high school students will be presented with cash prizes and awards at the For Love of the Constitution event at 1:30 PM on February 6, 2010 at the home of Corny & Joanne Steelink. For more information about the event or to RSVP, please call Essie Ramirez at (520) 908-0416 or email rsvp@aclusaz.org.
"The First Amendment impacts nearly every other freedom. That's precisely why we wanted students to share their own thoughts about whether they think it goes too far or not far enough," added Audrey C. Stirnitzke, president of the ACLU of Arizona University of Arizona Law College Chapter.
Excerpts from the first place essay will be printed in the ACLU of Arizona's spring newsletter, which will be published next month.
Founded in 1959, the ACLU of Arizona is a non-profit, non-partisan membership organization dedicated to preserving Constitutional freedoms and the Bill of Rights. With approximately 6,500 members and supporters statewide, the ACLU of Arizona is an affiliate of the national ACLU, which boasts a membership of 550,000. The Southern Chapter is one of two volunteer-run chapters of the ACLU of Arizona.
The ACLU is funded entirely with private donations, foundation grants, court-awarded legal fees and membership dues, and does not receive any government funding. For more information on the ACLU of Arizona, visit www.acluaz.org
First Hearing In Federal Court About The Patentability Of Human Genes
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NEW YORK – In the first hearing in federal court about the patentability of human genes, the American Civil Liberties Union and the Public Patent Foundation (PUBPAT), a not-for-profit organization affiliated with Benjamin N. Cardozo School of Law, asked the court today to rule that patents on two human genes associated with breast and ovarian cancer are unconstitutional and invalid. The groups charge that the patents stifle diagnostic testing and research that could lead to cures and that they limit women's options regarding their medical care.
"Allowing patents on genetic material imposes real and severe limits on scientific research, learning and the free flow of information," said Chris Hansen, an attorney with the ACLU.
The lawsuit, Association for Molecular Pathology, et al. v. U.S. Patent and Trademark Office, et al., was filed on May 12, 2009 in the U.S. District Court for the Southern District of New York on behalf of breast cancer and women's health groups, individual women and scientific associations representing approximately 150,000 researchers, pathologists and laboratory professionals. The lawsuit was filed against the U.S. Patent and Trademark Office, as well as Myriad Genetics and the University of Utah Research Foundation, which hold the patents on the genes, BRCA1 and BRCA2. The lawsuit charges that patents on human genes violate the First Amendment and patent law because genes are "products of nature" and therefore can't be patented.
"Patenting human genes is like patenting e=mc2, blood or air," said Hansen.
"The patent system was designed to reward and encourage human ingenuity. But genes are naturally-occurring parts of our bodies, not inventions," said Daniel B. Ravicher, Executive Director of PUBPAT and co-counsel in the lawsuit. "Patents on human genes should never have been granted in the first place. Genes are identified, not invented."
Mutations along the BRCA genes are responsible for most cases of hereditary breast and ovarian cancers. Many women with a history of breast and ovarian cancer in their families opt to undergo genetic testing to determine if they have the mutations on their BRCA genes that put them at increased risk for these diseases. This information is critical in helping these women decide on a plan of treatment or prevention, including increased surveillance or preventive mastectomies or ovary removal.
The patents granted to Myriad give the company the exclusive right to perform diagnostic tests on the BRCA1 and BRCA2 genes and to prevent any researcher from even looking at the genes without first getting permission from Myriad. Myriad's monopoly on the BRCA genes makes it impossible for women to access alternate tests or get a second opinion about their results and allows Myriad to charge a high rate for their tests.
Because the ACLU's lawsuit challenges the whole notion of gene patenting, its outcome could have far reaching effects beyond the patents on the BRCA genes. Approximately 20 percent of all human genes are patented, including genes associated with Alzheimer's disease, muscular dystrophy, colon cancer, asthma and many other illnesses.
"The patents on the BRCA genes restrict women's access to genetic testing and interfere with their medical care," said Sandra Park, staff attorney with the ACLU Women's Rights Project. "We hope that at the conclusion of this lawsuit, the court declares the patents unconstitutional and invalid."
Several major organizations, including the American Medical Association, the March of Dimes and the American Society for Human Genetics, filed friend-of-the-court briefs in support of the ACLU and PUBPAT's case. Prominent medical researchers and academics, including Nobel Prize winners Joseph Stiglitz and Sir John Sulston, have also stated their support.
Today's argument is on the ACLU's motion for summary judgment, asking the court to rule in favor of the ACLU's clients without a trial, and on the defendants' cross motions.
Attorneys on the case include Hansen and Aden Fine of the ACLU First Amendment Working Group; Park and Lenora Lapidus of the ACLU Women's Rights Project; and Ravicher and Sabrina Hassan of PUBPAT. Tania Simoncelli, the ACLU's science advisor, provides expert guidance on the case.
More information about the case, including an ACLU video featuring breast cancer patients, legal documents and plaintiff and supporter statements and declarations can be found online at: www.aclu.org/brca
Civil rights groups say ordinance violates day laborers' First Amendment rights
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COSTA MESA, CA – Today, MALDEF, the ACLU of Southern California and the National Day Laborer's Organizing Network (NDLON) announced a lawsuit challenging the City of Costa Mesa's anti-solicitation ordinance as unconstitutional.
The civil rights groups filed the lawsuit against the City of Costa Mesa on behalf of the Asociacion de Jornaleros de Costa Mesa and the Colectivo Tonantzin, whose members have been restricted from peaceably expressing their need and availability for employment in the city's public areas due to the ordinance.
MALDEF President and General Counsel Thomas A. Saenz said, "Free speech, one of our most cherished rights, belongs to everyone in society. Day laborers seeking work have as much right to express themselves as the largest corporation employing hundreds of thousands. Costa Mesa's anti-solicitation ordinance violates this vital and longstanding constitutional principle."
The city's anti-solicitation ordinance prohibits any person standing on a sidewalk or other public area from soliciting employment, business or contributions in any manner deemed to be intended to attract the attention of traveling vehicles. The ordinance subjects day laborers and other solicitors to a fine of $1,000 and imprisonment up to six months. The ordinance violates the day laborers' First and Fourteenth amendments rights under the United States Constitution.
"This ordinance is simply illegal. Not only does it discriminate against day laborers but it prohibits protected speech. It's so sweeping that it bans school children from holding car wash signs on the street or could prevent struggling businesses from using sign spinners," said Belinda Escobosa Helzer, staff attorney for the ACLU of Southern California.
Federal courts throughout the country have consistently stricken down anti-solicitation ordinances, and have ruled in favor of preserving the free speech rights of day laborers, which allows them to continue to solicit work and provide for their families.
"Day laborers have contributed to the Costa Mesa economy for decades," said Pablo Alvarado, director of the National Day Laborer Organizing Network. He continued, "Particularly during these tough times, the hard work they provide the community should be rewarded and not the target of destructive law enforcement practices."
The plaintiffs, Asociacion de Jornaleros de Costa Mesa and the Colectivo Tonantzin, are represented by attorneys Saenz and Gladys Limon of MALDEF, and Escobosa Helzer, Hector O. Villagra and Peter J. Eliasberg of the ACLU of Southern California. They are joined by co-counsel, Chris Newman of NDLON.
More information on the case, Asociacion de Jornaleros de Costa Mesa v. Costa Mesa, is available online at: www.aclu-sc.org
The ACLU of Southern California is the Southland's premier defender of civil liberties and civil rights. Founded in 1923, we defend freedom and the constitutional rights of all through lobbying, litigation and education. For more information about our work, visit us at: www.aclu-sc.org
Founded in 1968, MALDEF is the nation's leading Latino legal civil rights organization. Often described as the "law firm of the Latino community," MALDEF promotes social change through advocacy, communications, community education, and litigation in the areas of education, employment, immigrant rights, and political access. For more information on MALDEF, please visit: www.maldef.org
Legislation Would Create Excessive Burdens On Voting Rights
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CONTACT: media@aclu.org
COLUMBIA, SC – The South Carolina Senate will soon vote on a measure requiring voters to show state-issued photo identification before casting a ballot. The American Civil Liberties Union strongly urge Senators to vote against the bill.
The Voter Identification bill (H. 3418) would make it impossible for thousands of already-registered voters in South Carolina to exercise the fundamental democratic right to vote. The state Election Commission reports that an estimated 178,175 South Carolina voters do not have a driver's license or identification card issued by the Department of Motor Vehicles.
There has been no credible evidence of voter impersonation in South Carolina.
The following can be attributed to Victoria Middleton, Executive Director of the ACLU South Carolina Office:
"There is nothing more fundamental to our democracy than the right to vote. This onerous voter ID legislation would not prevent fraud, but instead create excessive burdens on voting rights. South Carolina Election Commission officials have stated that our recent history holds no examples of impersonation of voters and no evidence that anyone has tried to steal another citizen's vote. This bill only serves to disfranchise South Carolina voters.
"Our leaders should be in the business of encouraging full participation in our democratic process, not imposing barriers between Americans and the voting booth that are both unconstitutional and highly expensive. The Senate should oppose this and any legislation that would limit qualified Americans' ability to exercise their right to vote."
The following can be attributed to Meredith Bell-Platts, staff attorney with the ACLU Voting Rights Project:
"South Carolina already has one of the toughest identification laws in the nation. There has been no credible evidence of voter impersonation, and the bill's proponents have failed to show why the current protections are inadequate to deter or prevent fraud. This bill is a solution in search of a problem.
"In a democracy, it is essential that our electoral rules be fair and impartial. The real threat of vote theft comes from the undue impact of voter ID laws on people who belong to groups such as student, poor, minority, elderly and disabled voters, who are less likely to have ready access to the documents required to obtain a photo ID. The birth certificates, passports and other documents required to get an ID are not available free of charge."
More information on the ACLU South Carolina Office can be found at: www.aclusouthcarolina.org
More information about the ACLU Voting Rights Project can be found at: www.aclu.org/voting-rights
Lawsuit Challenges Governor Crist's Disfranchisement of Miami Voters
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CONTACT: (786) 363-2737 or media@aclufl.org
MIAMI – The American Civil Liberties Union of Florida today moved to intervene in Miami City Commissioner Michelle Spence Jones' lawsuit against Governor Crist. The ACLU is seeking to enter the lawsuit on behalf of five voters in District 5 who voted for her in the recent special election, held on January 12.
Governor Crist suspended Spence Jones from her post as City Commissioner on November 13, 2009, after she was charged with improperly directing government funds to family businesses. Spence Jones emerged as the clear winner over eight other challengers in a January 12, 2010 special election, for which she was qualified to be a candidate.
The five Commission District 5 voters, through their ACLU attorneys, maintain that she is eligible to remain in office since the voters elected her with the knowledge of the pending criminal charges. Spence Jones has not been tried or convicted; however the Governor suspended her again on January 14, 2010.
"Governor Crist has no authority to strip the voters of District 5 of their chosen representative," stated Muslima Lewis, Director of the ACLU of Florida's Voting Rights Project. "The Governor is trampling on the rights of voters who elected Spence Jones back into office with full knowledge of the charges against her. She is innocent until proven guilty.
"This is a first-of-its kind abuse of power by a Florida governor. No other public official who was returned to office by voters following a suspension due to a criminal charge has been removed from office a second time while the charges are still pending."
In Florida, the Governor has the right to suspend a public official for only specified acts of misfeasance or neglect of duty. However, if that official is then re-elected, and the voters were fully aware of the pending charges, they are entitled to take office absent new misconduct specified by Florida law.
"There is a real sense of urgency to resolve this matter in a swift and just manner," said Maria Kayanan, ACLU of Florida Associate Legal Director. "If the voters' choice is not honored, the Miami City Commission may appoint someone else to fill her seat. The people in District 5 are entitled to representation by the candidate they elected."
The ACLU legal team representing the Commission District 5 voters includes lead counsel Benedict P. Kuehne, ACLU cooperating attorney; ACLU of Florida Voting Rights project Director Muslima Lewis; and Maria Kayanan and Randall Marshall of the ACLU of Florida.
Download a PDF of the ACLU's papers filed in Miami-Dade Circuit Court today here: www.aclufl.org/pdfs/SpenceJones.pdf
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CONTACT: media@aclu.org
RICHMOND, VA — Va. Governor Tim Kaine announced today that he will not use his executive powers before leaving office to restore voting rights to 300,000 Virginians who do not have the right to vote because they were once convicted of a crime. Governor Kaine's decision leaves these citizens without the right to vote even though they have returned to the community and completed all terms of their sentence.
Virginia is one of only two states in the country (Kentucky is the other) that denies the right to vote — for life — to anyone with a criminal conviction. The only means by which an individual can regain the right to vote is by going through a lengthy application process to prove to the governor that he or she is worthy of the right to vote; even then the governor can deny that application for any reason or no reason at all.
The result: hundreds of thousands of Virginians are denied the right to vote, even though they have completed their entire criminal sentence and are living and working in the community. The laws that disenfranchise citizens who have been convicted of a crime were shaped in many respects by Jim Crow laws and continue to disproportionately affect people of color: one in every six African Americans in Virginia is permanently disenfranchised under this law. African Americans make up only one-fifth of Virginia's population, but over half of those who are disenfranchised.
The following can be attributed to Erika Wood of the Brennan Center for Justice at NYU School of Law: "We are deeply disappointed that Governor Kaine did not use his power to consign this relic of Virginia's Jim Crow history to the past. The language in the Virginia Constitution is remarkably clear and vests the Governor with broad authority to end this archaic practice. We are ready to work with Governor McDonnell to do just that."
The following can be attributed to Eddie Hailes of the Advancement Project: "Sadly, Governor Kaine announced his decision to leave more than 160,000 African Americans without the right to vote in the Commonwealth on the birthday of Dr. Martin Luther King, Jr. Despite our profound disappointment with Governor Kaine's capitulation to the status quo, we will not give up the fight to remove racial discrimination from the face of our democracy."
The following can be attributed to Rachel Bloom, Advocacy Coordinator for the American Civil Liberties Union's Racial Justice Program: "Virginia's disenfranchisement policy is out of step with American values of fairness and democracy. We hope that 2010 marks the year that Virginia joins the rest of the country by honoring the fundamental right to vote and eliminating this racially discriminatory barrier to the franchise."
The following can be attributed to Nicole Porter of The Sentencing Project: "Governor Kaine missed an important opportunity to encourage successful reintegration back into the community. Continuing to shut people out of the democratic process brands people as political outsiders and disrupts the reentry process."
Opinion pieces in today's Washington Post, Richmond Times-Dispatch, and Roanoke Times Say Governor can and should issue executive order before leaving office
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CONTACT: media@aclu.org
Richmond, VA – The ACLU of Virginia today urged Virginians to contact Governor Kaine to ask him to issue an executive order that would restore voting rights to most or all of Virginia's 300,000 individuals who are being denied the right to vote because of a felony conviction.
Civil rights and faith-based groups from across a broad ideological spectrum have asked Kaine to take executive action before leaving office. Among those that joined forces recently to seek the executive order are the NAACP Virginia State Conference, Virginia League of Women Voters, Virginia Interfaith Center for Public Policy, Virginia Poverty Law Center, Virginia Organizing Project, STEP-UP, Incorporated, Virginia CURE, The Northern Virginia Coalition, American Civil Liberties Union of Virginia, The Rutherford Institute, and the Virginia Conference United Methodist Church. The Virginia Catholic Conference and the Delta Sigma Theta Sorority, Inc. State Social Action Task Force and the Old Dominion Bar Association have also called for reform of Virginia's felon disfranchisement law.
Those interested in joining the effort can learn more about it and contact the governor by visiting www.restoreourvote.org.
Only Virginia and Kentucky permanently disfranchise all felons upon conviction, requiring an act of the Governor to restore voting rights. Of the forty-eight other states, two never remove voting rights and most automatically restore rights upon completion of prison sentences, parole or probation.
Governor Kaine has been asked numerous times during his tenure as Governor to take action to modernize Virginia's antiquated felon disfranchisement law that once was a centerpiece of Jim Crow. Advocates are hopeful that he will follow the lead of the Democratic Governor of Iowa and Republican Governor of Florida, both of whom took executive action in the last few years to reform their states' felon disfranchisement policies.
Under the Virginia Constitution, only the Governor has the power to restore voting rights. In practice that has been accomplished through a cumbersome application process resulting in a few thousand individuals having their rights restored during the term of recent governors. However, the Governor of Virginia, like those in other states with similar constitutional provisions, has the power to issue a blanket restoration order that would grant voting rights to everyone who has lost them.
"There is still time for the Governor to act before leaving office," said ACLU of Virginia Executive Director Kent Willis. "We know he and his staff have studied the issue closely over the last six weeks, so this is not something new to him."
Documents and references
The pieces in today's newspapers can be accessed at:
"Virginia's ballot-box disgrace." Editorial, Washington Post: http://www.washingtonpost.com/wp-dyn/content/article/2010/01/12/AR2010011203386.html
"Restore the Right to Vote to These Virginians." Op-Ed, Richmond Times-Dispatch: http://www2.timesdispatch.com/rtd/news/opinion/op_ed/article/ED-VOTE13_20100112-180406/317049/
"Law Allows Kaine to Act on Voting Rights." Op-Ed, Roanoke Times
http://www.roanoke.com/editorials/commentary/wb/232768
For more information on felon disfranchisement in Virginia including earlier editorials and columns supporting reform of the law and recent legislative history, visit www.restoreourvote.org. For a comparison of Virginia with other states, visit www.sentencingproject.org/doc/publications/fd_bs_fdlawsinus.pdf
Col. Morris Davis Fired For Speaking Out About Military Commissions
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CONTACT: (212) 549-2666; media@aclu.org
NEW YORK – The American Civil Liberties Union today filed a lawsuit against the Library of Congress on behalf of Col. Morris Davis, the former chief prosecutor for the Guantánamo military commissions, who was terminated from his job at the Library's Congressional Research Service (CRS) because of opinion pieces he wrote about the military commissions system. The lawsuit charges that CRS violated Davis's right to free speech and due process when it fired him for speaking as a private citizen about matters having nothing to do with his responsibilities at CRS.
"Col. Davis has a constitutional right to speak about issues of which he has expert knowledge, and the public has a right to hear from him," said Aden Fine, staff attorney with the ACLU First Amendment Working Group. "Col. Davis's firsthand experience is invaluable to the ongoing debate over military commissions, and the public should not be denied the chance to hear from him just because he is a public employee."
After 25 years in the United States Air Force, Davis resigned from his position as chief prosecutor in the military commissions in October 2007 because of his belief that the system was fundamentally flawed. He then became a vocal critic of the commissions, writing articles, giving speeches and testifying before Congress. In December 2008, Davis began working as the Assistant Director of the Foreign Affairs, Defense and Trade Division at CRS, a position that is not related to the military commissions.
On November 11, 2009, the Wall Street Journal published an opinion piece and the Washington Post published a letter to the editor in which Davis argued against having a two-tiered system of justice in which some Guantánamo detainees are tried in military commissions and others in federal courts. Both pieces were written by Davis in his personal capacity, made clear that he was writing as a private individual and former chief prosecutor of the military commissions and made no mention of CRS. Davis wrote the pieces on his home computer during non-work hours. In meetings that followed, Davis's supervisor at CRS, Daniel Mulhollan, informed Davis that as a result of the pieces his employment would be terminated. Davis was transferred to a temporary 30-day position at CRS, which will expire on January 20.
"My status as the former chief prosecutor for the military commissions at Guantánamo Bay and my opinions on that subject are completely unrelated to my position at CRS and totally separate from my duties there, and they don't interfere with my ability to do my job," said Davis. "The work that CRS does is incredibly valuable and I am proud of the opportunity to continue serving my country after a career in the military. I hope to be reinstated to my original position so I can continue to support Congress at this critical time in our nation's history."
In response to a letter from the ACLU in December, the Library of Congress stated that it would not reinstate Davis to his job at CRS. Today's lawsuit seeks to reinstate Davis to his position and to reaffirm that governmental employees, including employees of the Library of Congress, may not be terminated for speaking in their private capacities on matters of great public concern.
The ACLU filed the lawsuit against James Billington, the Librarian of Congress, and Mulhollan in the U.S. District Court for the District of Columbia. Attorneys on the case are Fine, Alexander Abdo and Jameel Jaffer of the national ACLU and Arthur Spitzer and Frederick Mulhauser of the ACLU of the National Capital Area.
The ACLU's complaint is available online at: www.aclu.org/free-speech/davis-v-billington-complaint
More information about the case is available online at: www.aclu.org/free-speech/davis-v-billington
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CONTACT: (212) 549-2666; media@aclu.org
COLUMBIA, SC – The American Civil Liberties Union argued before the South Carolina Supreme Court today that a South Carolina candidate oath law is unconstitutional and was unconstitutionally applied to state legislature candidate Eugene Platt. The law requires every candidate for office to sign an oath to abide by the results of a party's primary and if the candidate loses the party's primary, bars the candidate from petitioning or campaigning as a write-in candidate for the general election ballot for any office for which the party has a nominee.
"The candidate oath law unconstitutionally violates the right of voters and parties to select the candidates of their choosing," said Bryan Sells, a senior staff attorney with the ACLU Voting Rights Project who argued the case. "The First Amendment provides special protection for the process in which a political party selects a nominee that best represents its ideology and preferences."
South Carolina is one of only four states that permit fusion voting, allowing multiple political parties to nominate the same candidate; however, the state's candidate oath law unconstitutionally bars a candidate from having his or her name placed on the general election ballot by another political party even if the candidate wins the other party's nomination.
Platt was chosen by the Green Party as its candidate for a state legislative house seat and subsequently lost the nomination for the same office in the Democratic primary. Under the oath statute, a state court barred Platt from running as the nominee for the Green Party and denied him the opportunity to present evidence that he was not in violation of the oath, although Platt had not allowed his name to be placed on the general election ballot by petition and had not campaigned as a write-in candidate.
The ACLU charges that the oath statute was applied without due process and imposes an unjustified burden on the First Amendment's free association rights of Platt and voters who supported him, as well as the Green Party's right to select its preferred candidate.
"South Carolina's election scheme rejects the First Amendment's fundamental protections and makes the outcome of one party's primary dependent on the outcome of every other party's nominating process," said Laughlin McDonald, Director of the ACLU Voting Rights Project. "The real losers here are the democratic process and the voters of South Carolina who are being denied greater choices at the ballot box."
Attorneys on the case are Sells and McDonald of the ACLU Voting Rights Project.
The legal documents in the case, Tempel v. Platt, are available at: www.aclu.org/votingrights/access/36353res20080807.html
More information on the work of the ACLU Voting Rights Project is available at: www.votingrights.org
