by MARK GABRISH CONLAN
Copyright © 2013 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved
Raul Macias and Luz Villafranca
Like them or not, just about everyone knows what the American Civil Liberties Union (ACLU) does. It looks for instances of government agencies or private companies that appear to be breaking the constitutional rights of individuals, and files lawsuits either to get them to stop or to get the courts to declare that this is no longer acceptable behavior. But when San Diego ACLU executive director Kevin Keenan spoke at the local chapter’s annual meeting February 28, he presented a vision of a new ACLU that will not only file lawsuits against perceived constitutional violations but also work with community organizers on the same issues — including immigrants’ rights, access to marijuana, relationship equality and opposition to capital punishment.
Keenan’s co-presenter, ACLU associate director Norma Chavez-Peterson, exemplified the organization’s broadening its strategies. Before she came on board at the ACLU she was an executive at the MAAC (“Maximizing Access to Advance Our Communities”) project and the founder of an immigrant-rights group called Justice Overcoming Boundaries. Chavez-Peterson, who only signed onto the ACLU staff last December, told the annual meeting, “I was born in Michoacán, Mexico. I came here at five and I didn’t know what ‘legal’ or ‘illegal’ meant. I just knew my mom needed to make that journey to feed her children. My immigration and separation from my family has shaped a lot of my work.”
Chavez-Peterson explained the ACLU’s new approach as “remembering we can’t do it alone. Part of our focus is not only building relationships on the grass roots level but working in coalition with organizations,” and at what she-called the “grass-top” level. That means working with “elected officials, law enforcement officers, registrars of voters and other non-traditional allies,” she said.
Escondido community organizer Luz Villafranca thanked the ACLU for working in coalition with organizations of Escondido’s Latinos to turn around the prejudices aroused by a local ordinance forbidding landlords to rent to undocumented immigrants and employers to hire day laborers without immigration documents. “Many people within my community in Escondido felt oppressed,” Villafranca said. “Many of my friends are undocumented, and essentially they made it a crime for me to pick them up at the store. The ACLU came in and it was like a ray of light. We organized to lobby, and it was a change from people being afraid to people being empowered.”
Thanks to the connections between the ACLU and the city’s community organizations, Chavez-Peterson said, Escondido’s Latino voters mobilized to challenge the city councilmembers who had passed that law. “The people [in Escondido] have been encouraged to speak with their city council, their state legislators, and hopefully their national legislators,” she explained. “The majority of people in Escondido, who are Latino, now see that they can have a result if they get involved. I watched the polls, and they were not intimidated from voting.”
“When I was in Escondido in 2006, it was very different,” said the San Diego ACLU’s legal director, David Loy. “The City Council had just passed the rental ban, and the ordinance was an instrument of terror. Now there’s a sense of power. We got that ordinance thrown out, but there’s only so much you can do in court.”
Raul Macias described the efforts of his group working with the ACLU to get state agencies in San Diego to implement the so-called “motor voter” law, which allows people to register to vote at state government offices while they’re there for other things, like renewing their driver’s licenses or getting social services. The “motor voter” law was passed in Congress in 1993 but by 2007, when Macias took up the issue, “not a lot was happening in California. In 2011 ‘motor voter’ registrations were down 90 percent from what they had been when the law was passed. We worked with the San Diego County Registrar of Voters and found a lot of the local [government] offices didn’t know about the law.” The result was a major increase in the number of people registered to vote at government offices in 2012.
What’s more, Macias and his coalition partners lobbied the state legislature to extend what he called the “best practices” of San Diego County’s elections officials and mandate them statewide. “It was through this relationship we built with our local elected officials that this got passed,” Macias explained. “The Association of California Elections Officials heard from us, and their subcommittee recommended that they support the bill, lobby for it, and get the governor to sign it” — which he did. Macias added that the collaborations they had built while pushing the bill forward came in handy after it went into effect, when they were able to get on the committees writing the regulations that will implement it.
“We asked every candidate for elected office in San Diego County to respond to a survey on how they stand on civil liberties issues,” said senior policy advocate Margaret Dooley-Sammuli. “We can now go back to them with where they stand. As our staff grows, we have so many more opportunities to engage with elected officials. We’re finding ways to leverage and advance our issues.”
“This has been a watershed year in our work on the border,” said staff attorney Sean Riordan. “The Border Patrol is the largest police force in the country. The courts and Congress have given them extraordinary authority, and with that has come the power for extensive abuse. You can be pulled over for secondary inspection without any grounds for suspicion at all. Thee are border checkpoints and so-called ‘reader inspections.’ These powers are employed without a lot of oversight. It’s very hard, even for people in Congress, to call them to account.”
What is to be done? “We see a significant role for ourselves in trying to call the border agency to account for its abuses,” Riordan said. “In the past we’ve challenged them before the Inter-American Community on Human Rights. We’ve also taken other steps on oversight. This is a big problem no one in D.C. seems to be spending the time they need to make sure [Border Patrol agents] are following the Constitution. We filed a complaint with the federal government that was covered in the U.S. media, and it was a significant factor in the Department of Homeland Security’s opening an investigation.”
Riordan said the local ACLU has filed suits defending the right of individuals at the border to take photos and video of Border Patrol agents in action without being harassed or threatened by the agents. They’ve also filed an amicus curiae brief in the appeal of a private suit filed against the Border Patrol by the family of a 15-year-old Mexican who was shot by a Border Patrol agent on the Mexican side of the border, which was thrown out at the trial level on the ground that “the Border Patrol had no obligation to follow the Constitution.” And the local ACLU is hiring a new attorney who will work exclusively on civil and human rights issues involving the border.
Keenan began the afternoon meeting with a presentation on the ACLU’s work in 2012, and in particular on the good and bad news from last November’s election. “If you were like me, you went to sleep on November 6 with a great deal of anxiety,” he said. “It was probably 1 a.m. when I started to fall asleep, and I was still worried about the elections. Obama had won, but I was worried about everything else. There was one painful result” — California voters defeated Proposition 34, which would have set aside the state’s death penalty — but, Keenan said, among the positive developments were the long-overdue reform of the “three strikes” law in California, the victories for same-sex marriage equality in four states and the repeal of state laws against marijuana possession in Colorado.
“Right now we have six cases as counsel or co-counsel at the U.S. Supreme Court,” Keenan said, including the unexpectedly controversial challenge to Section 5 of the Voting Rights Act of 1965. This is the requirement that states and localities with histories of discrimination against voters of color “pre-clear” changes in their elections laws with the federal government so they don’t pass laws that might have the effect of disenfranchising people of color. The meeting occurred before the Supreme Court hearing on Section 5, in which the justices’ comments from the bench indicated that there is a five-vote Right-wing majority ready to strike down Section 5.
Nonetheless, Keenan was guardedly optimistic not only about Section 5 but some of the other Supreme Court cases the ACLU is involved with this year. “This year we could see the end of the Defense of Marriage Act,” he said. “We could see Congress passing an immigration reform bill with some positive and negative elements.” He conceded that so far the ACLU has lost most of its legal challenges to the so-called “war on terror” — generally the courts have upheld the government’s right to keep its anti-terror programs secret and put people whose rights are attacked in the “war on terror” in a Catch-22 situation where they can’t challenge the anti-terror laws without being able to prove that they were personally injured, and can’t prove they were personally injured because the programs are allowed to operate secretly.
Still, Keenan said, Supreme Court Justice Ruth Bader Ginsburg recently spoke in San Diego and told her audience that the “war on terror” is the greatest opportunity for a young attorney just seeking to make their mark on civil liberties issues. “I have hope and faith that the ACLU will be there to win back those rights,” Keenan quoted Justice Ginsburg as saying.