Next Tuesday, more than 70 million Americans will head to the polls in what many are predicting will be a record turnout. When they do, voters will encounter an election system that has undergone a dizzying number of changes since the debacle of the 2000 presidential election. Some of these changes have themselves raised serious questions that continue to fuel controversy as the election approaches. But the real question now is whether our election infrastructure can handle the deluge of voters when they show up on November 4.

Voting-rights advocates have already sounded an alarm. Last week, the NAACP filed suit against the Commonwealth of Virginia alleging that the state is unprepared to handle the expected turnout. The fear is that election officials will not have enough voting machines, privacy booths, or well-trained poll-workers to handle heavy turnout. This could mean extremely long lines in some precincts, and would-be voters could turn away rather than wait for hours. One recent study predicts lines more than 10 hours long in parts of Virginia.

So what can you do to protect your right to vote in the event of long lines? Here are a few tips:

1. Vote early or by absentee ballot. There’s still time to do that in many
   states, and the lines for early voting will often be shorter than voting in
   person on Election Day.
2. Vote at off-peak times. The best times to vote are between 10 a.m. and
   12 noon and between 2 p.m. and 4 p.m.
3. Be prepared to wait in line. Wear comfortable shoes. Dress in layers
   and bring rain or snow gear if the weather forecast calls for precipitation.
   Bring a snack and reading material.
4. Be patient, and stay calm. Losing your cool can lead to losing your vote. Also, other voters are less likely to hang around if a line gets unruly.
5. Stay in line. You have a right to vote if you’re in line when the polls
   close, but you might lose that right if you get out of line for even a short
   time.

For more voting tips, check out our 10 Voting Tips video and blog post.

There are just five days left until voters in California will vote on Proposition 8, which would strip lesbian and gay couples of the fundamental right to marry. Although a Field Poll released today shows that we have a decent shot at defeating the initiative, there are still a large number of undecided voters. If we all speak up, we can turn those undecidededs into no votes.

The easiest way to encourage friends and family to vote no on Proposition 8 is to click here to send them a prewritten e-mail that you can personalize. 

While this may seem obvious, remember to tell people to vote NO. We’ve heard reports that some people have found the language confusing and accidentally entered a yes vote when they intended to vote no.

If you have the time, why not send a personal message? Or better yet, get creative. Use social networking sites like My Space, Facebook and Linkedin. Or do like Pedro Marcucci did and make a YouTube video like the one he shared with me below.  Together, we can defeat Prop. 8!

Are you a high school senior, preparing to graduate and attend college? Are you passionate about protecting your civil liberties and promoting equality? Do you believe in supporting democracy and preserving your individual rights, guaranteed by the Constitution? Well, then we have an opportunity for you!

The ACLU’s Youth Scholarship Program is a great way for young civil libertarians to show off their stuff and pay for school at the same time. The ACLU will pick 16 individuals from across the U.S. to receive a college scholarship for $12,500. Plus, winners will attend two Youth Activist Leadership trainings in NYC and Washington D.C., where they will meet other members, lawyers, and staff of the ACLU who work diligently in promoting and protecting our civil liberties.

What makes a student activist? Just look at things you do in your everyday life! How do you express your commitment to protecting the rights of all Americans? Do you fight for your First Amendment rights, promote the rights of LGBT, speak out against civil liberties violations, or promote awareness of our rights through education?

If this sounds like you, contact your local ACLU affiliate to apply! You’d better hurry; many affiliates stop taking applications in mid-November!

More scholarship information can be found at StandUp!, ACLU’s Youth website.

Imagine you are a native-born U.S. citizen and, like many spring break-ers before you, you take a short trip to Mexico. Upon returning home, you cross the border by land and present your birth certificate showing that you were born in the United States. You don’t have any photo identification, and you don’t know that they’ve changed the rules to require it. Now, imagine that at the border, the examining agents ask you some questions unrelated to your citizenship, and without corroborating your birth certificate or your identity, conclude that you are not a U.S. citizen. They return you to Mexico, denying you any opportunity to contest their unfounded conclusion or prove your citizenship.

Hard to believe this could happen, right? What about if you aren’t white? Is it easier to believe then? Well, it happened to Guillermo Olivares, 25, a U.S. citizen born in Los Angeles. And it happened to him over and over again.

On as many as five occasions, border agents denied Olivares entry into the U.S. at the Tijuana border crossing when he attempted to come home after he was illegally deported. He even resorted to crossing illegally…but was caught and deported again.

His ordeal began in 2000, when Olivares, then 16 or 17 years old, was returning to the U.S. with a cousin, who did not have papers to enter the U.S. Instead of denying entry to just the cousin, border agents denied entry to Olivares as well, claiming that Olivares wasn’t who he said he was and that his birth certificate was not real. The agents, however, never attempted to corroborate the birth certificate or his identity. Instead, the agents told Olivares he would be detained if he did not admit to being someone else. So Olivares did what any teenager fearful of being locked up would do: he told them his name was Guillermo Romero, a variation of his actual name, Guillermo Olivares Romero, and he was returned to Mexico.

One week later, Olivares’ mother traveled to Tijuana to retrieve her stranded son. The two crossed the border without incident when Olivares’ mother presented border agents a copy of Olivares’ birth certificate, certified by the county registrar.

In 2006, when Olivares was serving time in state prison for probation violations, an agent from Immigration and Customs Enforcement (ICE) visited him in prison and informed him that ICE believed he was a citizen of Mexico and planned to deport him. Olivares protested that he was an American citizen. They refused to listen to him, and Olivares, unaware of his rights, felt he had no choice but to say he was Mexican and sign some papers that were never explained to him. In the spring of 2007, ICE deported Olivares to Mexico.

Again Olivares’ mother traveled to Tijuana to retrieve her son. Despite the certified copy of his birth certificate, border agents told Olivares that he was Mexican and sent him back to Tijuana. Frustrated, Olivares went to live with his mother’s family in Jalisco, Mexico.

Over a year later, in June 2008, Olivares’ father became gravely ill. Anxious to see his ailing father, Olivares returned to Tijuana. He and his mother tried multiple times to cross the border with a certified copy of his birth certificate, but again border agents turned him away, insisting that he was lying.

Finally, in August of this year, desperate to see his father before he passed away, Olivares crossed the border illegally. But the agents arrested and deported him again, despite his protests that he was a U.S. citizen. He was deported on September 2, 2008; the day his father died.

A few weeks later, fed up of being denied his fundamental rights as a citizen, Olivares again attempted to cross the border and presented his certified birth certificate. This time Olivares refused to be badgered into signing any papers and demanded to see a judge. Border agents put him into removal proceedings and imprisoned him in the Otay Mesa Detention Center in San Diego. When the ACLU of Southern California sent the detention center a certified copy of his birth certificate — the same evidence of citizenship that Olivares had presented over and over again — ICE released him.

During the course of Olivares’ odyssey, not once did ICE agents attempt to corroborate his claims to citizenship. They ignored his government issued birth certificate. They dismissed his efforts to provide them his Social Security number. They did not even consult the government’s own criminal records, which would have confirmed that Olivares is a U.S. citizen. Instead, they judged his immigration status on the basis of race on the theory that if he looks "Mexican," and speaks like a "Mexican," then he must be Mexican.

This story speaks volumes about an immigration agency that is systematically abusing its power to enforce our nation’s immigration laws. With very few checks on its authority, ICE routinely disregards the constitutional rights of those caught in its enforcement web, including U.S. citizens and legal permanent residents, often using race as its only evidence of immigration status. Across the country, there are increasing reports of U.S. citizens who have been illegally deported and detained in ICE custody. Such practices will continue so long as ICE can make discriminatory and baseless determinations about a person’s legal status, without affording the procedural protections required by the Constitution.

The ACLU is strongly committed to protecting everyone’s right to make their political opinions known, regardless of one’s viewpoint. This includes pro-life demonstrators protesting former President Clinton and opponents of the Iraq War calling for President Bush’s impeachment (PDF). In addition, the ACLU is currently involved in numerous court challenges supporting political demonstrators who have been prevented from demonstrating in the presence of the president.

With a new election, comes a new set of challenges. In one week we will decide the next president of the United States. This presidential campaign cycle has been the most costly and the longest in history. It has also been one where fashion and politics collided. I cannot remember an election where I saw more people wearing clothing or other paraphernalia supporting one candidate or another on a daily basis (I should confess that I am not that old; I can only clearly remember back to the 1996 election). It is not just that people are wearing the clothing, but that the clothing itself has become so diverse as to allow people to express both their political aspiration and their fashion sense at the same time. While this can be seen as a positive step in effort to increase participation in our political process, it also sets the stage for potential problems at the polls.

As many of you know, the voting process for federal elections is determined at the state level. This means that each state sets the rules by which citizens exercise their right to vote. This decentralized process has led to some confusion among voters, as the voting rules differ from state to state, and sometimes county to county. One of the common problems stemming from this process has to do with state laws prohibiting campaigning at or near the polls. In some states this law extends to passive political speech (i.e. wearing political clothing, pins, stickers, etc.) near or at the polling place. This law permits voting officials to deny the right to vote to anyone wearing clothing or paraphernalia supporting a candidate or issue on the ballot.

It would seem that government censorship of political speech is exactly the type of speech the framers sought to protect when they authored the First Amendment. As the First (and later Fourteenth) Amendment makes clear, Congress (and the States) “shall make no law … abridging the freedom of speech.” But, the U.S. Supreme Court has carved out an exception for the permissible prohibition of political speech near the polling place on election day. The plurality found, in Burson v. Freeman (1992), that “some restricted zone is necessary in order to serve the States’ compelling interests in preventing voter intimidation and election fraud.” Thus, a “minor geographic limitation” does not “constitute[ ] a significant impingement.” But, this case focused on the question of active political campaigning near the polling place and not passive political speech at the polling place.

Unlike the U.S. Supreme Court, both the U.S. Court of Appeals for the D.C. Circuit and U.S. Court of Appeals for the Fifth Circuit have addressed the question of limiting passive political speech at the polling place. In Schirmer v. Edwards (1993) the Fifth Circuit found that a law prohibiting all campaign activity within 600 feet of a polling place on election day to be permissible under the First Amendment. And, in Marlin v. District of Columbia Bd. of Elections and Ethics (2001), the D.C. Circuit upheld an election board regulation prohibiting a voter from wearing a campaign sticker. While the reasoning differed in these two cases, the result was the same; passive political speech can be regulated during the voting process.

While two U.S. appellate courts have found that such prohibitions are permissible under the U.S. Constitution, the highest courts in several states have found that such prohibitions violate state speech laws. The ACLU of Virginia has recently announced it plans to challenge Virginia’s prohibition on passive political speech in the hope of adding to the growing body of state law protecting passive political speech at the polls. Unfortunately, the question will not be decided during this election cycle.

The confusion in the courts has placed the voter in a difficult position; can you wear your political clothing when you exercise your right to vote? Unless you know for sure, we suggest that you either refrain from wearing political clothing, or be prepared to cover up or remove such clothing. Though you may be permitted to vote with it on, you also risk losing your right to vote. In an election that has been described by many as the most important in our lifetime, we suggest that pragmatism carry the day.

Late Wednesday, the 6th Circuit Court of Appeals found in favor of voters’ rights in a lawsuit brought by the ACLU and the Advancement Project. In question was a Michigan state law requiring local clerks to nullify the registrations of newly-registered voters whenever their original voter identification cards are returned by the post office as undeliverable. A lower court found this law violated the Voter Registration Act of 1993. Wednesday, the appeals court upheld this ruling.

We’ll have more later.

UPDATE: Here’s the court’s decision.

Three Couples. Three minutes. They show us in their video why marriage matters. Why we must save the fundamental right to marry in California on Election Day.

There is a human cost when gay couples are denied the fundamental right to marry. The stories of three couples from New Mexico demonstrate what thousands of couples in California stand to lose if their right to marry is taken away on Election Day. It is important that we save marriage in California so couples in other states can have the hope to marry, too. Please forward and share this video with everyone you know in California and ask them to vote NO on Prop 8.

(Originally posted on Open Left.)

This Tuesday, California voters will decide the fate of Proposition 5, the Nonviolent Offenders Rehabilitation Act (NORA). If it passes, NORA will shift California away from a criminal justice-oriented approach to substance abuse and toward a health-based approach, primarily by providing drug treatment as an alternative to incarceration for nonviolent offenders.

NORA builds on the success of Proposition 36, passed in 2000 with 61 percent of the vote, which has saved California taxpayers over $1.5 billion and diverted hundreds of thousands of Californians from incarceration to treatment.

NORA would also transform California’s dysfunctional prison system. The independent Legislative Analyst’s Office (LAO) calculates that NORA would reduce the state prison and parole populations by at least 40,000 in just a few years. Since the late 1980s, the state’s prison population increased by 75 percent to over 170,000— nearly three times faster than the general adult population. Meanwhile, the number of incarcerated nonviolent offenders skyrocketed from 20,000 to 70,000. Since 2000, despite some reduction in prison population growth thanks to Prop 36, annual prison costs have grown 50 percent to over $10 billion— about 10 percent of the state budget, the equivalent of the state’s spending on its public universities.

The LAO calculates that NORA would generate $2.5 billion in taxpayer savings in prison construction costs, in addition to lowering incarceration costs by $1 billion each year. These resources could be used for healthcare, education and addressing the state’s gaping $16 billion-plus budget deficit.

All this compassion and common sense is just too much for President Bush’s drug czar, John Walters, who has been using federal taxpayer dollars to visit California to campaign against NORA. Naturally, California’s powerful prison guards union has also joined the fray, recently pledging a million dollars for a last-ditch opposition effort. Opponents of NORA, like previous opponents of Prop 36, are desperately trying to stoke fears that this decrease in incarceration would lead to an outbreak of violent crime. Yet, since Prop 36’s passage, California’s violent crime rate has decreased at a greater rate than the national average.

If you have friends or family in California, you can help by sending them an e-card from the ACLU’s ballot initiative action page.

If NORA passes, it will:

• Expand drug treatment diversion programs and reduce reliance on incarceration for nonviolent offenders. Specifically, NORA requires the state to expand and increase funding and oversight for individualized treatment and rehabilitation services for nonviolent drug offenders and parolees. It reduces criminal consequences of nonviolent offenses by mandating a three-tiered probation with treatment and by providing for case dismissal and/or sealing of records after probation. The measure permits offenders who have failed to complete Track I to be shifted to Track II and then to Track III, where they face escalating sanctions, leading ultimately to incarceration as a last resort. Critically, NORA allows funding for "harm reduction" drug treatment programs, such as methadone maintenance, sterile syringe exchange and programs that are not solely based on an abstinence-only treatment model. In addition, NORA sets up a new county-operated program for nonviolent youth under age 18 who are at risk for committing future drug offenses. For those who do end up behind bars, NORA also allows inmates to earn additional time off their prison sentences for participation and performance in rehabilitation programs.
• Modify parole supervision procedures and expand prison and parole rehabilitation programs. NORA increases the maximum parole period from three years to five years for any offender whose most recent prison sentence was for a violent or serious felony— but shortens parole for nonviolent drug offenses, including sales, and for nonviolent property crimes. NORA requires that parole violations be divided into technical violations, misdemeanors and felonies, and generally prohibits certain parolees from being returned to state prison for technical or misdemeanor violations (such as failing drug tests). All prison inmates would be required to be provided rehabilitation services beginning at least 90 days prior to their release date. In addition, a Parole Reform Oversight and Accountability Board would be created and given the authority to review, direct and approve rehabilitation programs, and to set state parole policies.
• Reduce penalties for marijuana possession. NORA would make the possession of less than 28.5 grams of marijuana by an adult or minor an infraction (similar to a traffic ticket) rather than a misdemeanor (as under current law). Adults would be subject to a $100 fine; minors would not be subject to a fine but would be required to complete a drug education program. Money collected under these fines would be deposited into a special fund for the youth programs created by NORA.

NORA is an unprecedented opportunity to make a crucial difference in hundreds of thousands of lives and promote alternatives to the wasteful and counterproductive war on drugs. To learn more about NORA, check out www.Prop5Yes.org.

(Originally posted on Daily Kos.)

It seems each day brings a new story about allegations of fraud during ACORN’s voter registration drives. But what is often left out is that there is absolutely no credible evidence that phony registrations translate into fraudulent votes. Mickey Mouse or Donald Duck might be registered, but neither is likely to show up to vote on Election Day. But while voter registration fraud does not threaten the integrity of this election, there is a very real concern that widespread voter suppression does.

This is not new. We have a long history in this country of officials systematically denying people the right to vote. In the past we had literacy tests, poll taxes, residency requirements, all-white primaries, intimidation, and challenges to voter eligibility, all designed to keep African-Americans from voting. More recently, we have seen the widespread use of vote caging — sending "Do Not Forward" letters to minority voters that, if returned, could be used to challenge them as nonresidents.

Today, we are seeing a rash of new schemes to deny people the right to vote, often in the form of voter purges. These efforts are often driven by partisanship and are in response to unprecedented increases in the registration of voters believed likely to vote for the other party. They continue to target minority voters, as well as students who tend to vote differently than the general population.

This month, the Montana Republican Party challenged the residency of 6,000 registered young and likely Democratic voters in several counties in Montana. The party compared the voter rolls with the U.S. Postal Service’s change of address registry, and compiled a list of voters who might have changed their mailing address without changing their voter registration. State law provides, however, that people who change residence within a county are still entitled to vote. The election administrator of Missoula County said only twice in the past 15 years had anyone tried to challenge another voter’s eligibility. In a lawsuit that was subsequently filed, a federal judge stated that "the timing of the challenges is so transparent it defies common sense to believe the purpose is anything but political chicanery."

Similar patterns have emerged in other states, as well. In Michigan, state officials purged 1,438 people whose voter identification cards were returned as undeliverable by the post office. In ordering the voters returned to the rolls, a federal court ruled that the purges violated the National Voter Registration Act, which prohibits the automatic purging of a voter merely because a registration card is returned as undeliverable. The proper procedure is to give notice to voters and remove them from the rolls only if they fail to vote in the next two elections.

Partisans in Ohio tried to intimidate voters by challenging the legality of a weeklong period in which new voters could register and cast an absentee ballot on the same day. And despite the fact that the U.S. Supreme Court rejected an attempt by Ohio Republicans to challenge 200,000 newly registered voters, the White House took the extraordinary step of asking the Attorney General to launch an investigation.

In Georgia, the Secretary of State advised county registrars to challenge registered voters and applicants for registration who had indicated they were not citizens on an earlier application for a driver’s license. Several public interest groups filed a lawsuit charging that the state had never received preclearance of its new voting procedure as required by the Voting Rights Act and that it was in violation of the National Voter Registration Act, which does not allow systematic purges of voters 90 days prior to an election. A three-judge federal court ruled last week that the state had not complied with the Voting Rights Act and ordered it to preclear the new purge system. As the election gets closer, similar incidents are piling up in state after state.

The right to vote is a precious tenet of our democracy. The Supreme Court has called it "preservative of all rights." It is protected by state law, the U.S. Constitution, and numerous federal statutes. Yet, sadly, many partisan officials in our country seem determined to do whatever it takes to deny certain voters the right to cast their ballots. These efforts might march under the banner of good government and the prevention of voter fraud, but don’t believe it. The real goal is voter suppression.

The ACLU has been on the ground fighting voter suppression across the nation, in the courts and on the streets, as have other groups. Voters must also join the fight, and do their best to protect their own voting rights by planning ahead, voting early and checking their voter registration status as soon as possible. There is too much at stake this November 4 for citizens to be denied their voices in choosing America’s next leader.

Yesterday, for the first time, a U.S. military judge at Guantánamo ruled that a prisoner’s confession was extracted through torture, as defined by the Military Commission Rules of Evidence. The judge barred the government from using the detainee’s confession as evidence during a military commission trial.

The judge made the ruling in the case of Mohammad Jawad, an Afghan citizen who was a juvenile when he was captured in December 2002. He is accused of throwing a grenade and wounding two U.S. soldiers and their Afghan interpreter. After his capture, Jawad was interrogated by armed Afghan officials who, as Jawad stated in a September 2008 declaration admitted as evidence, threatened to kill Jawad and his family. The decision states:

During the interrogation, someone told the Accused, "You will be killed if you do not confess to the grenade attack," and, "We will arrest your family and kill them if you do not confess," or words to that effect. The speaker meant what he said; it was a credible threat.

In his ruling, the judge, Army Col. Stephen Henley, also indicated that there was reason to believe that Jawad was under the influence of drugs at the time of his forced confession. Jawad was subsequently turned over to U.S. forces and transferred to Guantánamo where he has been detained since the beginning of 2003, and where he was also subjected to cruelty and abuse, including through the euphemistically-named "frequent flyer program."

The Jawad case has been the center of much attention lately. You may recall that the lead prosecutor in the case, Lt. Col. Darrel Vandeveld, resigned in September because he believed that he could not ethically proceed with the case.

An Associated Press story on the ruling quoted the ACLU’s Hina Shamsi, who has monitored numerous military commission proceedings at Guantánamo, including the hearing that led to the judge’s decision yesterday:

Hina Shamsi, an attorney with the American Civil Liberties Union, welcomed the ruling, but alleged "evidence obtained through torture and coercion is pervasive in military commission cases that, by design, disregard the most fundamental due process rights, and no single decision can cure that.”

Jawad’s statements in Afghan custody were key to the government’s case against him. Now that we know how those statements were obtained, the question is if and how the case can fairly proceed. Stay tuned.