September/October 2014 - an ACLU of Rhode Island Newsletter

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September/October 2014 Newsletter

Volume: XX, Issue Number: 4

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REJECT QUESTION 3 ON NOVEMBER 4th

The ACLU opposes holding a Constitutional Convention and we urge our members to vote to Reject Question 3 on Election Day. A convention puts your civil liberties at risk. Click here to read about the ACLU's concerns or visit rejectquestion3.com to learn more.


Significant Victory In Fight To End Prison Gerrymandering; Cranston Lawsuit Moves Forward

Cranston residents and the ACLU of Rhode Island won a significant victory in their fight for equal voting power in City elections when U.S. District Court Judge Ronald Lagueux denied a motion to dismiss their one person, one vote lawsuit, allowing the case to proceed.

“I’m thrilled this case is going forward,” said Karen Davidson, lead plaintiff. “As a Cranston resident and taxpayer I’m entitled to equal representation and I will keep fighting for it.”

At issue in the case is the City of Cranston’s choice to count the more than three thousand inmates at the Adult Correctional Institutions (ACI) in a single city ward for the purposes of drawing City Council and School Committee districts. The ACLU has argued that this “prison gerrymandering” is improper because those incarcerated at the ACI are not true constituents of local elected officials, but instead remain residents of their pre-incarceration communities for virtually all legal purposes, including voting.

Due to the questionable counting, persons at the only state-run correctional facility in Rhode Island account for 25% of Ward 6’s total “population.” According to Census Bureau data, without the incarcerated population, Ward 6 has only about 10,000 true constituents. Yet those constituents now wield the same political power as the roughly 13,300 constituents in each of the other wards. The lawsuit claims that this dilutes the voting strength and political influence of citizens residing outside of Ward 6, in violation of the Equal Protection requirements of the Fourteenth Amendment.

In the first ruling nationwide to directly confront the issue, Judge Lagueux agreed that the ACLU had presented a viable legal claim, stating that “...the inclusion of the ACI prison population is not advancing the principle of electoral equality because the majority of prisoners...cannot vote, and those who can vote are required by State law to vote by absentee ballot from their pre-incarceration address.” He also concluded that the incarcerated population’s “inclusion in Ward Six does nothing to advance the principle of representational equality.”

“The City of Cranston has allowed the 2014 elections to be held under a one-person, three-quarters of a vote regime,” said Steven Brown, RI ACLU executive director. “In light of the court’s decision, we hope that this will be the last City election relying on prison gerrymandering to deprive all residents of an equal vote.”


From the Desk of the Executive Director

Although we have been accused of “fear-mongering,” we know first-hand the dangers of a convention, because we lived through it in 1986. As a result of ballot questions that came out of that convention and were approved by the voters, protection for abortion rights was stripped from our Constitution, thousands of residents – particularly African-Americans – lost the right to vote, and the right to bail was eviscerated.

Basic constitutional rights should not be subject to majority rule, but that is precisely what a con con leads to. Using the ballot to decide socially divisive issues has increased exponentially since 1986 – as has the influx of outside money to influence those votes. Con con supporters simply ignore this reality, and the reality of 1986.

Getting positive change through the legislature is often difficult, but it can be done. On the other hand, hard-fought rights can be lost in a matter of months at a convention.

H.L. Mencken once remarked, “For every problem, there is a solution that is simple, neat, and wrong.” The constitutional convention is just that type of “solution.” I urge you to reject Question 3.

-- Steven Brown


ACLU Educates Voters to Counter Misinformation At The Polls

Despite official reports that there were few voting problems during the primary election, the ACLU of Rhode Island received reports that workers at three separate polling places and the Providence Board of Canvassers told voters they did not have the right to vote if they did not have an approved form of photo identification, raising nagging concerns about the implementation of the state’s new voter ID law.

The new law requires voters to show an accepted form of photo ID to cast a regular ballot, but allows any person without accepted ID to vote by provisional ballot. These incidents indicate severely inadequate training on the law’s vital protection. Among the reported incidents:

• An elderly Hispanic woman who did not have identification was turned away from voting in Providence after being wrongly told by the warden that “even for a provisional ballot, you need an ID.”

• Poll workers in Pawtucket initially denied a voter a provisional ballot when he did not show photo ID. The voter explained the law to the workers, who then had to call a supervisor. It then took poll workers 45 minutes to determine how to administer a provisional ballot, according to the voter.

• A man trying to cast an emergency ballot at the Providence Board of Canvassers the day before the election was told he was unable to vote because he did not have proper identification. He got to vote by provisional ballot only because another person waiting in line forcefully advocated on his behalf.

These problems were documented with fewer than a dozen poll watchers on the ground, suggesting that many more voters were denied their rights.

The ACLU and other organizations had previously raised concerns with the state Board of Elections that poll workers were not being given clear enough instructions about their obligation to present provisional ballots to voters without proper ID. However, to the ACLU’s knowledge, the Board has taken no action to address this issue.

To inform voters of their rights at the polls, the ACLU has distributed thousands of educational brochures and postcards to local organizations and individuals. The Affiliate also plans to deploy poll watchers to polling places across the state on Election Day to monitor and record any additional problems with the implementation of this troubling law.

People witnessing or encountering problems on Election Day are urged to call the ACLU office. Educational materials on voting rights are available here.


ACLU Calls On DMV To Stop Sharing Drivers’ Personal Information With Anti-Terrorism Database

The Division of Motor Vehicles is sharing personal information about innocent Rhode Islanders with a growing federal anti-terrorism database, and the ACLU has called on the DMV to stop sharing the data and to publicly justify its decision to participate in the first place. The ACLU has also filed an open records request to find out how the DMV got involved in the program.

A recently leaked document shows that Rhode Island is one of 15 states sharing biometric data from drivers’ licenses with the National Counterterrorism Center (NCTC), a government organization that integrates and analyzes what it describes as “all intelligence pertaining to terrorism possessed or acquired by the U.S. government.” The center’s database, known as TIDE, contains information on more than one million people, and in FY2013 collected over 2,400 facial images from its driver’s license initiative, according to the leaked document.

In an August letter sent to DMV administrator Anthony Silva, ACLU of RI executive director Steven Brown raised deep concerns about the state assisting the NCTC, which is allowed to collect and analyze information regarding innocent Americans who do not have any known connection to terrorism. The letter called on the DMV to halt its participation in the driver’s license initiative or any similar program that collects innocent individuals’ personal information.

“In recent years,” the letter said, “investigative reporting and leaks have revealed a frightening explosion of federal efforts to collect information and spy on innocent Americans. It is troubling to learn that Rhode Island agencies like the DMV are – in secret, without any public awareness, discussion or input – assisting in some of these programs.” The letter noted that the collected is also often added to a “master watchlist” that is shared with federal agencies, law enforcement agencies, and foreign governments, and that can lead to being subjected to enhanced security screenings at airports and the No Fly List.

Governor Lincoln Chafee responded to the allegations in a cryptic press statement, saying only that an investigation found “no evidence of the proactive sharing of information with the NCTC.” In response, the ACLU has filed an open records request to learn about any “non-pro-active” information sharing.


NEWS BRIEFS

Much ACLU work is done quietly and informally, but to great effect. A few examples from the past two months include the following:

  • Responding to ACLU testimony, the City of Providence significantly revised its proposed comprehensive zoning ordinance to eliminate unconstitutional restrictions on political signs.
  •  After the community group DARE complained that its newsletter had been banned from some ACI facilities, the ACLU met with Department of Corrections officials, who agreed to reverse the ban and to conduct a full review of its mail policies.
  • When the Department of Education proposed holding four hearings across the state on proposed regulations to implement the General Assembly’s moratorium on “high stakes testing,” none was scheduled in or near Providence. After the ACLU voiced concerns, the Department added a fifth hearing date for Providence.
  • The Department of Health passed new regulations making it easier for transgender people to get their gender identity changed on their birth certificate. Some of the procedures being proposed were made in response to testimony submitted by the Affiliate.

Judge Rules Unconstitutional State Ban On Anonymous Political Literature

Ruling in an ACLU lawsuit, U.S. District Court Judge William Smith in October struck down a state law that makes it a crime to circulate anonymous political literature, including unsigned newspaper editorials. The ACLU of Rhode Island sued over the legality of the statute earlier this year to halt the Town of Smithfield’s stated plans to enforce it. The statute, which carries a potential one-year prison sentence, bars the distribution of any anonymous political literature that relates to ballot questions or that criticizes a political candidate’s “personal character or political action.”

In his four-page decision, Judge Smith called it “hard to imagine what the Rhode Island General Assembly was thinking when it passed this law . . . [but it] must be invalidated as a violation of the First Amendment.”

The U.S. Supreme Court had previously declared an almost identical Ohio statute unconstitutional, and called anonymous pamphleteering “an honorable tradition of advocacy and of dissent” designed to“protect unpopular individuals from retaliation - and their ideas from suppression - at the hand of an intolerant society.” That 1995 ruling cited a long history of anonymous political literature in this country, including the Federalist Papers.

Despite the U.S. Supreme Court ruling, last year the Smithfield Police Department arrested a political consultant for purportedly violating the state law. The Attorney General’s office later dismissed the charges, citing the Supreme Court case. In January, the ACLU wrote town officials to seek assurances that Smithfield police would no longer enforce the statute. The ACLU received no response; instead, news stories quoted town officials as calling the ACLU request “absolute nonsense” and stating that they intended to continue initiating criminal complaints under the statute.

This prompted the ACLU’s lawsuit, filed by volunteer attorney Mark W. Freel on behalf of Smithfield resident John Blakeslee, a long-time civil rights (and ACLU) activist.


R.I. Board of Education Decision Could Undermine Right To A Free Education

The R.I. Board of Education has overturned decades of precedent guaranteeing the availability of a free public education by upholding a decision by Commissioner Deborah Gist that allows school districts to charge students for summer school.

In the ruling, issued against a Cumberland student, the Commissioner held that, despite the significant financial burden it imposed on the family, the school district could lawfully charge $700 for the student to attend summer school in order to avoid being held back a grade. The Board of Education upheld that ruling by a 7 to 2 vote at an October meeting.

Without citing any legal authority or providing a meaningful explanation, the ruling ignored a letter sent to the Board by the ACLU and other groups, which noted: “If summer school fees are deemed permissible, middle income children will have access to a school-offered opportunity for remediation and grade advancement which lower income children will not.”

For over 150 years, and particularly in recent decades, Commissioners of Education have invalidated attempts to levy fees on student programming as varied as night classes, after-school activities, interscholastic sports and Advanced Placement classes. The rulings have relied on the absence of any state law authorizing the imposition of school fees, and from a policy perspective that the state should not permit the creation of lesser educational opportunities for lower income families and students.

The ACLU expressed particular concern that the ruling “opens the doors for struggling school districts to begin charging for a wide array of other educational services, thereby severely undercutting the widely held notion that every child is entitled to a free public education.” The ACLU expects to participate in an appeal of the ruling, which is being handled by Rhode Island Legal Services.


A Constitutional Convention Puts Civil Liberties At Risk: Vote To Reject Question 3

A constitutional convention is a dangerous venture that opens our state’s constitution to wholesale revision and subjects our fundamental rights to the whim of the majority. The ACLU is calling on its members to protect civil liberties by opposing a constitutional convention and voting to reject Question 3 on November 4th.

Every ten years, Rhode Islanders vote on the need for a constitutional convention, but rewriting the state constitution puts your rights up for a vote. We need to look no further than the last constitutional convention, held in 1986, to see how our most basic freedoms will be put at risk.

Proponents of the 1986 convention, much like the proponents of a convention now, promised a convention that would rise above politics and address serious governmental reform. Instead, convention delegates—a number of whom were related to sitting legislators or later became elected officials themselves—approved amendments that restricted the rights of Rhode Islanders.

Two of the amendments that were approved by voters had a significant impact on the rights of racial minorities. One amendment, considered during a time when the “War on Drugs” was a major campaign issue, eliminated the right to bail for people charged with certain drug offenses. Another amendment significantly expanded the number of people who lost their right to vote because of a criminal record, including people receiving suspended sentences or probation.

Other amendments sought to end abortion rights in the state. One, which was defeated by the voters only after an extensive and expensive campaign, sought to make all abortions illegal by declaring that life begins at conception. Another amendment, approved by the voters, stripped the state constitution of any protections for abortion rights. That amendment raised serious concerns about the process because it did not even mention the word “abortion” in the text of the ballot question. It was also bundled with several other proposed amendments into one yes-or-no ballot question.

That these issues became the focus of the 1986 convention is not surprising. Once a convention is called there is no limit on what the delegates can consider, meaning every aspect of the Constitution is open to revision even if there is no pressing need for it. The delegates who propose these amendments would be elected in an off-year election by small pluralities and, since they serve only one term, would be accountable to no one. At the same time, wealthy out-of-state interests can use the convention to push their pet causes in our state – as they have done elsewhere -- including constitutional bans on affirmative action, broad religious exemptions for marriage equality; denial of rights to immigrants; or tax credits for religious schools.

Modifications to our constitution should be considered only when there is a clear and definitive need, and when alternative methods are not available. Working for change through the General Assembly can be painfully slow, but it can be done.

The threat that a constitutional convention poses to our civil liberties is very real. Don’t risk it. On November 4, Reject Question 3.


Access Limited: An Audit of Compliance with the R.I. Public Records Law

An audit of compliance with amendments made in 2012 to the state’s Access to Public Records Act (APRA) shows that a number of state agencies and municipal departments, in particular the police, are in violation of the changes to the law. In addition, enforcement of parts of the law appears to be weak or nonexistent.

The audit was conducted by ACCESS/RI, a coalition of local non-profit organizations and First Amendment advocates, including the ACLU of Rhode Island, and MuckRock, a collaborative news site and public records request platform. The audit found:

• Dozens of agencies violated the 10 business day response window when asked for routine documents such as employee contracts and arrest reports.
• More than half of police departments (20 out of 39) failed to provide basic arrest information within 48 hours as required under the 2012 APRA revisions.
• More than a third of government agencies surveyed failed to meet APRA training and certification requirements for 2014.
• Most agencies have adopted written APRA procedures, but nearly a quarter have not posted these procedures online as required by the statute. 

All 39 cities and towns and 24 state agencies, representing a cross section of public and quasi-public agencies, were audited. The audit offered a number of recommendations to ensure compliance with the law. They include:

• The Attorney General’s office must enhance its oversight by posting publicly a list of those public bodies that do not comply with the annual certification requirement.
• There should be a strong presumption that any public body without APRA-certified employees is deemed to have engaged in a “knowing and willful” violation of the law when it commits violations.
• The Office of the Attorney General must become more aggressive in seeking penalties against violators.
• The General Assembly should consider further reforms to strengthen APRA, such as creating penalties for non-compliance that would accrue on a daily basis and otherwise increasing fines, and authorizing courts to award compensatory and punitive damages to successful plaintiffs.
• The results of the audit also raise the question of the effectiveness of Rhode Island’s current enforcement protocol, which relies on the Office of the Attorney General to enforce the APRA against fellow state agencies. A highly successful alternative system in Connecticut instead charges an independent commission with overseeing public records disputes.

ACCESS/RI President Linda Lotridge Levin said: “Too many agencies appear to consider complying with open records requests a burden rather than what it actually is and should be — a core mission of their agency. Thus, it is incumbent on state agency directors, mayors, town clerks, police chiefs, school district superintendents and the heads of all other public bodies to make clear to personnel that compliance with APRA is a priority, to emphasize the critical importance of transparency, and to reverse a deep-rooted attitude of secrecy that seems embedded in too many agencies.”


Police Departments Still Fail To Post Complaint Forms and Procedures Online, ACLU Report Finds

Ten years after Rhode Island law began requiring police departments to post online their police complaint forms and procedures, some departments are still not in compliance, a new ACLU of RI report has found. The requirement, contained in the Racial Profiling Prevention Act of 2004, was designed to make it easier for victims of police misconduct to file complaints with departments. Over the years, some police officials have cited the rarity of complaints they receive to minimize claims about the prevalence of racial profiling or other misconduct.

The ACLU of RI report reviewed the websites of all municipal police departments and the State Police to determine if, and how, the departments had posted online their police complaint forms and procedures. The report is an update to a 2007 review that found almost half of the police departments in the state had failed to comply with the law. While some departments have improved their practices, the latest report said the results “remain disheartening.”

The report found:

• Five police departments – Barrington (with a broken link), East Greenwich, Little Compton, New Shoreham and Tiverton - post no complaint forms or procedures online, despite their posting of other forms and information on city or town websites.
• Three police departments - Coventry, Hopkinton and Richmond - post only complaint forms or procedures but not, as the law requires, both.
• Nineteen of the departments that post their procedures online nonetheless fail to indicate that they accept complaints in all the manners required (by mail, fax, and in person).
• At least two departments - Coventry and Warren - require a complainant’s social security number.
• A number of departments include warnings that complainants may be prosecuted if they are determined to have made false statements, even though similar warnings do not appear on other documents submitted to the police. Such warnings, the report notes, “likely discourage those who fear retribution or harassment from filing complaints.”
• Several departments give only a perfunctory explanation of their complaint process, barely adhering to the law and providing virtually no guidance to complainants.

The ACLU report noted that given the ease by which these documents can be posted online “it is eye-opening – and disheartening – to discover that too many fail to meet even minimal standards to make the process user-friendly.” The report concluded that “if police departments are serious about their desire to receive feedback from the community, and to aggressively address issues of police misconduct and racial profiling, adjusting their complaint procedures and forms is a small, relatively simple step toward facilitating the filing of complaints.” The full report is available on the ACLU of RI’s website.


ACLU of Rhode Island Events

Legislative Wrap Up & Dessert Evening
State Representatives Edith Ajello and Larry Valencia, State Senator Gayle Goldin, and ACLU policy associate Hillary Davis discussed the 2014 General Assembly’s impact on civil liberties at our annual legislative wrap-up. Topics included voter ID, political speech, DNA collection, and Internet privacy. Audience members had the opportunity to ask questions and share their opinions while enjoying coffee and desserts donated by Au Bon Pain, Coffee Exchange, Trinity Brewhouse, Sin, Stop and Shop, and Whole Food Market.

ACLU Trivia Night
The ACLU of Rhode Island celebrated Constitution Day with a civil liberties trivia night at The Salon in Providence. ACLU staffers, members, and some new to the organization socialized, shared snacks, and competed for first place in our trivia contest. After four lively rounds, the team Carl and the Belles of Rights took home the top prize.

Banned Books: Authors on Censorship
The ACLU partnered with East Providence Public Library to celebrate Banned Books Week with a standing-room-only performance by Living Literature, an association of local performing artists. Living Literature read the words of renowned authors responding to censorship and considering how censorship affects their work.  ACLU volunteer attorney John W. Dineen also discussed censorship and free speech.