PROVIDENCE — When the pandemic first struck in March, Steven Brown, executive director of the American Civil Liberties Union of Rhode Island, walked into the group’s empty offices in downtown Providence.
With staff members working from home, he looked around at piles of paperwork and thought to himself: “This is going to be great — I’ll have so much time to catch up on things.”
“What a pipe dream,” Brown said last week, as the ACLU filed the latest in a series of lawsuits stemming from the pandemic, marking the busiest period in his more than 25 years on the job.
Between the government’s reaction to the COVID-19 outbreak, the federal government’s approach to immigration, and public outrage over police brutality, Brown said, “It is a perfect storm of attacks on civil liberties that, taken together, are close to unprecedented.”
Recent Rhode Island ACLU action includes:
- Filing a federal lawsuit on behalf of Common Cause Rhode Island and the League of Women Voters of Rhode Island, challenging Rhode Island’s requirement to have two witnesses or a notary sign mail ballot envelopes. The suit says that requiring face-to-face interaction during the pandemic will place voters with medical vulnerabilities at risk of severe illness or death.
- Filing a class-action lawsuit that claimed it was unsafe to keep immigration detainees at the Wyatt Detention Facility in Central Falls amid the coronavirus outbreak. A federal judge ordered 16 detainees released on bail, and Wyatt ended up releasing another nine detainees without a hearing.
- Filing a federal lawsuit against the state Department of Labor and Training, claiming it froze unemployment insurance payments to thousands of residents without giving a reason or notice as part of a fraud investigation. The Department of Labor and Training has since taken steps to provide notifications.
- Blasting Governor Gina M. Raimondo for what the ACLU called an unconstitutional “blunderbuss approach” by having the Rhode Island State Police stop cars with New York license plates and ordering anyone traveling to Rhode Island from New York to stay quarantined for 14 days.
- Criticizing Providence Mayor Jorge O. Elorza for imposing a nighttime curfew while city licensing officials told local restaurants they could stay open after 9 p.m. “The danger apparently is not severe enough to interfere with the right of residents and non-residents alike to venture out and enjoy a night of coq au vin with their friends,” Brown wrote in a letter to Elorza.
- Questioning the decision to charge people with desecration of a grave, a felony, for allegedly lobbing containers of paint at the boxed-up statue of Christopher Columbus in June. The paint splattered on plywood and fencing surrounding the statue. “Whether this overcharging was done to make it easier to get the defendants to waive their right to a trial and plead to a misdemeanor or just out of pure malice will likely never be known,” Brown wrote in a letter to the Providence police chief. “What is clear, however, is that the underlying felony charges border on the ridiculous.”
Jared A. Goldstein, a constitutional law professor at the Roger Williams University School of Law and an ACLU of Rhode Island cooperating attorney, said the pandemic has prompted a series of major governmental restrictions, so groups such as the ACLU are busy challenging some of those limitations.
“Considering how many important decisions the government is making that significantly affect our lives, it shouldn’t be a surprise that the ACLU and others are frequently challenging them in court and in public,” Goldstein said. “The Constitution provides a time-tested standard for measuring the validity and wisdom of what the government does.”
Some of the ACLU’s actions have drawn criticism.
For example, the Rhode Island Republican Party objected to the ACLU lawsuit that challenged the notary or witness requirements for mail ballots, and it issued a news release titled: “ACLU puts the integrity of our elections at risk.”
The GOP said it is preparing to intervene in the court case because it sees the notary and witness requirements as a necessary safeguard against fraud.
In an interview, state Republican Party Chairwoman Sue Cienki noted that Rhode Island is in Phase 3 of reopening its economy, which allows social gatherings of up to 25 people indoors and up to 50 people outdoors, while big-box retail stores are open and nursing homes are accepting visitors again.
So, she said, people ought to be able to safely find a way to have their ballot envelope signed by a notary or two witnesses.
“Our elections are susceptible to fraud,” the GOP said, citing past examples. “The ACLU’s lawsuit is not about protecting public health. It is about undermining the integrity of our election.”
Brown disagreed, saying Rhode Island is in a minority of states that require witness signatures for mail ballots. He said waiving those requirements was an essential part of protecting the health of voters during Rhode Island’s presidential primary on June 2.
“And nothing has changed since then,” Brown said. “Yet here we are, forced to go into court to protect the public’s health in order to vote.”
He said the General Assembly should have passed a law or Raimondo should have issued an executive order waiving the notary and witness requirements. “We are hoping the third branch of government will do what the other two branches of government have refused to do,” he said.
That lawsuit says that more than 125,000 people live alone in Rhode Island, and of those, more than 50,000 are 65 years and older and, therefore, at elevated risk if they catch the disease.
The plaintiffs include an 88-year-old woman who lives alone and cannot drive because of a severe back condition, and a woman who has been diagnosed with asthma, hypertension, and diabetes.
Brown said those plaintiffs represent thousands of Rhode Islanders who have serious illnesses or otherwise would have a tough time getting witness signatures.
“The current situation puts them in the position of risking their health and even their life to vote,” he said. “And that is an unconscionable position to put anyone in.”
Brown said election officials have other ways of guarding against fraud, including checking the signature on mail ballot envelopes, and he argued that the potential for fraud is actually greater if party officials or others with a vested interest are witnessing the act of voting.
“It’s better to vote in the privacy of your own home without anybody looking over your shoulder, telling you how to vote,” he said.
While disagreeing over the mail ballot issue, Cienki said she’s a lawyer who recognizes that it’s the ACLU’s job to file lawsuits and raise questions when it believes the government has overstepped its authority.
“The ACLU is certainly busy,” she said. “They are doing what they believe their mission is.”
Cienki said the General Assembly, which is controlled by Democrats, should be serving as a more active watchdog on the use of emergency powers during the pandemic. So perhaps that is why the ACLU had to jump in, she said.
Brown said issues of civil liberties arise frequently during crises, including health crises and political crises. And often, the government’s first response to emergencies is to decide civil liberties need to be subsumed under broader public goals, he said.
Sometimes, those decisions make sense, Brown said, citing the requirement to wear face masks as a “narrowly tailored” measure aimed at stopping the spread of COVID-19. But sometimes, the government either goes too far, and other times it doesn’t do enough to protect the public, he said.
In either case, Brown said he does not expect to have the free time to wade through the pile of papers on his desk any time soon.
“It has been extraordinarily busy,” he said. “And there is no sign of it stopping.”