by Julia Decker*
It is easy to say that voting is the cornerstone of our democracy, perhaps easier still to say that protecting the right to vote is paramount. There is nuance, however, in assessing those protections. In an era of what many perceive to be increasing political polarization, ostensibly neutral yet increasingly stringent proposals in the name of “protection” may run up against civil liberties concerns.
The ACLU has consistently taken positions to support proposals such as restoring voting rights for formerly incarcerated folks, and opposing proposals such as voter identification laws. The goal of expanding the franchise regardless of race, gender, sexual orientation, or any other identity or characteristic aligns with the fundamentality of the right to vote.
On the other hand, proposals aimed at protecting election workers from intimidation, for instance, require more careful consideration. Ensuring the safety of election workers and administrators is unquestionably important, and a legitimate goal for decisionmakers to try and achieve. But laws attempting to penalize speech under the guise of “protection” will, as a general rule, face two main issues from a civil liberties perspective.
First, the tension between the First Amendment and other public policy goals, ranging from safety to functionality and beyond, is evident. From a public policy standpoint, it’s legitimate for election workers to not want to be insulted, harassed, or threatened for doing the job of ensuring the cornerstone of our democracy happens. However, the prospect of state-imposed civil or even criminal penalties for a person’s First Amendment speech or actions, as abhorrent as they may be, cannot be blindly accepted as a civil-liberties-friendly solution, even if enacted in the name of protecting the right to vote. Moreover, there is no guarantee that laws which empower the state to punish one group for First-Amendment-protected activities will not be turned around to punish another group. To put a fine point on it, a law that gets passed as a result of purported white supremacists harassing election workers in a predominantly BIPOC precinct could be relied on to target BIPOC counter-protesters in addition to, or instead of, the alleged white supremacists.
Second, when the discussion becomes one around “protection,” there is often a tendency to emphasize how election workers themselves feel afraid, due to the actions or speech of others. Subjective fear is legitimate, and election workers should not have to accept feeling afraid as part of their job. However, subjective fear should not be the basis for any legislation, especially legislation that imposes criminal penalties on a person. Cases of police violence have repeatedly shown the dangers of relying on subjective fear—how often have news reports carried some version of a police officer stating that they were afraid for their life as a justification for harming or killing a person? And how often is that apparently enough for the legal system to decide that the officer’s actions were reasonable?
In addition, even purportedly objective measures that rely on something like a “reasonable person” standard fail to account for implicit bias. Much has been written about the way people are perceived differently based on race, gender, and other factors, but the “reasonable person” standard simply bakes those perceptions into the standard itself. The result is that laws proposed in the name of protecting a particular right, like voting, may perpetuate standards that have disproportionately harmed BIPOC communities in particular. Experiments have shown that people perceive Black men as being “more capable of causing harm” and therefore police would be “more justified in using force to subdue them.” Thus, the threshold for what a “reasonable person” would consider a threat is different based, at least in part, on the race, gender, and/or age of the person they are interacting with. Some mushiness with respect to potential harm is understandable. However, one shouldn’t lose sight of the fact that, for BIPOC folks, this baked-in disparity can mean the difference between a heated conversation and being shot by armed agents of the state.
None of this is to say that protecting the right to vote and protecting civil liberties are incompatible; far from it. However, a principled approach to protecting civil liberties requires an understanding that rights and liberties can be, and often are, in tension with one another, and resolving that tension is much, much easier said than done.
*Julia Decker, Policy Director, ACLU of Minnesota