Column: Sometimes, the ACLU is all that has stood between a democracy and a Trump dictatorship

ACLU attorney Dale Ho at the Supreme Court, where he successfully argued against a citizenship question on the U.S. census.
(Magnolia Pictures)

As soon as he took office, Donald Trump began trying to dismantle the U.S. Constitution.

First came his ill-conceived “Muslim ban,” followed by his ill-conceived family separation plan, his ill-conceived attempt to prevent pregnant women in immigration detention from receiving abortions, his ill-conceived attempt to kick transgender soldiers out of the military and his ill-conceived attempt to add a citizenship question to the census.

As you can imagine, the ACLU has had its hands full for the past 3½ years.


In all of those cases, it has taken on the Trump administration and secured partial or total victories in the group’s never-ending quest to tame the basest impulses of a man who continues to hammer away at the very foundations of our democracy because it pleases his base.

And even when Trump loses in court, he doesn’t stop trying. Just a couple of weeks ago, as he continued to sink in the polls, he came back to the census issue for another round of immigrant bashing, issuing a memorandum that seeks to bar people who are in the country illegally from being included in the census. The national headcount is, among other things, the basis for redrawing congressional districts.

“It feels like Groundhog Day,” said Dale Ho, head of the ACLU Voting Rights Project and the attorney who in 2019 successfully persuaded the Supreme Court that a citizenship question on the census is unconstitutional. “You don’t get to say that undocumented people aren’t people.”

Ho is one of four attorneys featured in a surprisingly dramatic and engaging new documentary, “The Fight,” about the American Civil Liberties Union’s battles with the Trump administration. The filmmakers, Elyse Steinberg, Josh Kriegman and Eli Despres, are the same team that made one of the best political documentaries in recent memory, “Weiner,” which chronicles the clueless self-destruction of a once-promising political star, former Rep. Anthony Weiner.

“I am gratified that our work is going to get a broader audience now,” Ho told me Friday morning. “When they approached us to do the movie, I was like, how is this going to be interesting? All I do is sit at a computer writing things and having conference calls.”

Are you kidding me?

I held my breath in suspense during much of the film, as the lawyers raced around the country, interviewing their clients, who included a transgender soldier, a mother whose 7-year-old daughter had been ripped from her arms by immigration officials, a Guatemalan man separated from his son, and a Mexican immigrant, an unaccompanied minor, who was seeking an abortion after being raped. “That’s what she claims,” said Scott Lloyd, director of the Office of Refugee Resettlement, in a videotaped deposition featured in the documentary.

Lloyd, the man responsible for blocking the procedure, also told ACLU attorney Brigitte Amiri in the deposition that abortion is a sin.

After Amiri prevailed, her client was able to end the pregnancy. “I felt very happy,” the client said, “as though they saved my life.”

The stress as each attorney waits for the court decision that will determine clients’ fates is palpable.

And so is the confusion; when Ho began reading the Supreme Court decision in his case, Department of Commerce vs. New York, he thought he had lost but soon realized he had won.

“I confess I was a little embarrassed,” he told me about that scene. “My job is to read legal opinions, and here I was misreading an opinion.”

And yet, he was hardly alone. Even ACLU Legal Director David Cole was initially confused by the ruling, which found that while the government may have the right to add a citizenship question, the Trump administration’s after-the-fact rationale that it would aid in enforcing the Voting Rights Act was a pretext.

Three days after Trump issued his latest anti-immigrant memo, the ACLU filed suit on behalf of several immigrants’ rights groups, accusing the president, once again, of launching a discriminatory attack on immigrants. The lawsuit notes that while the humanity of enslaved Black Americans was once discounted for the purposes of apportionment — the infamous three-fifths compromise — the Trump administration is attempting to do something equally vile: entirely negate the humanity and existence of the estimated 11 million U.S. residents who are in the country illegally.

The Constitution, as it happens, does not say that only American citizens should be counted.

The 14th Amendment requires that “the whole number of persons” in the country be counted. In 1982, the Supreme Court reaffirmed that anyone living in the U.S. must be counted. “Whatever his status under the immigration laws,” said the court in Plyler vs. Doe, “an alien is a ‘person’ in any ordinary sense of that term.”

In practical terms, Ho told me, Trump is trying to punish Democratic states with large immigrant populations — places like California and New York, which would end up with fewer representatives in Congress and fewer electoral college votes.

It’s of course a common refrain that every presidential election is the most important ever, but given the stakes, this one really is. It’s not just that Trump’s policies are so odious, or that he has undermined U.S. interests around the world and catastrophically mishandled the pandemic; it’s that he is actively working to undermine the most fundamental element of our democracy: the voting process itself.

He has mused about delaying the election, which only Congress has the power to do. He has launched a series of attacks on the security of mail-in ballots, claiming that if most Americans vote by mail, “this will be the most rigged election in history.” He has appointed an inexperienced postmaster general whose new “cost-cutting” measures have already caused backlogs, which have alarmed postal workers who worry they won’t able to deliver ballots on time.

“This will be the hardest election to run since 1864, when we had a presidential election during the Civil War,” Ho said. “We will have more voters than ever, all in the midst of the worst public health emergency in a century.”

In a November nightmare scenario Ho has discussed with other voting experts, like UC Irvine’s Rick Hasen, Trump leads the in-person vote on election night, declares victory prematurely, but then the lead flips to former Vice President Joe Biden as mail-in ballots are counted.

Wouldn’t it be easy to make it clear to everyone in this country that the election is not over until all the votes are counted? Maybe, said Ho, but the ACLU can’t do it all. The media must play its part in protecting our democracy.

“I would respectfully suggest,” said Ho, “that that is your responsibility.”

Challenge accepted.