For months leading up to the election, President Trump spared no opportunity to spew baseless claims about mass voter fraud and sow unrest about the democratic process. It was a familiar tone. On the campaign trail in his first run, he continually complained the election was “rigged” against him. Even after he won the electoral college and assumed office in 2016, he insisted he only lost the popular vote because millions of people voted illegally.

As the 2020 election drew nearer with Biden up in the polls and state’s expanding mail-in voting to protect voters from the rising threat of the Covid-19 pandemic, Trump amplified his attacks, filing a slew of lawsuits that claimed absentee ballots would lead to mass fraud. In the first presidential debate with now President-elect Joe Biden, he rambled on about mail-in-ballots cast in his favor found in “rivers” and “creeks” and encouraged his supporters to loiter at polling locations to “watch carefully” for fraudulent activity. Then, breaking precedent with every incumbent and presidential candidate before him, he refused to agree to apeaceful transition of power.

There wasn’t—and still isn’t—evidence that mail-in ballots lead to voter fraud. Data did show, however, that Democratic voters were far outpacing Republican voters in requesting absentee ballots. And rather than acknowledge he might lose the election, he tried to set democratic norms and institutions ablaze.

Although Trump’s antics were of little surprise to us at the ACLU, they were, nevertheless, deeply concerning. A healthy democracy depends on free and fair elections. Already, states across the country unfairly disenfranchise voters, especially people of color, poor people, and elderly people, through various voter suppression tactics like mandatory photo ID laws, shortened early voting periods, limited absentee voting, voter purges, reduced polling sites, and laws that prevent people with felony convictions from voting. The result is a severely compromised democracy that does not reflect the will of the American people. In undermining people’s faith in the electoral process and encouraging his supporters to intimidate voters, Trump threatened to further suppress electoral participation.

The ACLU was prepared for this moment. As Trump spent his time peddling conspiracy theories and denigrating our democracy, the ACLU launched an ambitious campaign to ensure every eligible voter was heard and counted.

Made for this moment

In the lead up to the election, the ACLU national office and ACLU affiliates went to court in 20 states and Puerto Rico, winning 26 victories to safeguard the voting rights of millions of Americans. We successfully fought familiar attempts at voter disenfranchisement, such as unnecessary barriers to registration, automatic voter purges based on erroneous information, and needless voter identification requirements.

"As Trump spent his time peddling conspiracy theories and denigrating our democracy, the ACLU launched an ambitious campaign to ensure every eligible voter was heard and counted."

To ensure every American could access the ballot without having to compromise their health, we filed lawsuits in Missouri, Alabama, Connecticut, Kentucky, and South Carolina, helping win victories to expand vote-by-mail eligibility to all voters in each of the five states. In Tennessee, we successfully sued to expand vote-by-mail eligibility to those with underlying medical conditions and those who care for people with underlying medical conditions, and in Puerto Rico, to everyone over 60. We also went after state laws that require voters casting their ballots by mail to have someone as a witness when they complete their ballots and provide a witness signature, winning victories in Virginia, Rhode Island, Minnesota and Alaska.

Fortunately, New Mexico allows every eligible voter who wants one to request a mail-in ballot, and has a significant period of time dedicated to early in person voting beginning in October. While this meant people didn’t have to choose between their health and their vote, New Mexico is not immune to voter suppression efforts, and we were prepared to fight tooth and nail to defend people’s access to the ballot.

In the weeks leading up to Election Day, the ACLU communications team educated voters about important deadlines for registering, requesting and returning absentee ballots, and voting early. We also provided them with the tools to cast an informed vote by elevating the key issues at play in the race and educated them on their voting rights. Many of our members and supporters responded to our work with enthusiasm, volunteering as non-partisan poll monitors when we put out the call. Over 1,000 people, across every New Mexico county, signed up to help protect the integrity of our elections.

At the same time, our legal team reached out and partnered with local attorneys to get as many hands on deck should a need for litigation arise. They not only sponsored a Continuing Legal Education (CLE) presentation, led by Daniel Ivey-Soto, to train legal professionals on New Mexico election law, but they also worked with Common Cause New Mexico to staff a nonpartisan voter protection hotline to assist voters encountering problems orirregularities when voting. ACLU attorneys prepared precautionary litigation in anticipation of political intimidation, fielded calls, helped answer voters’ questions, and drove out to polling locations when they received reports of voter intimidation.

When Trump tried to halt the count of millions of mail-in ballots, the ACLU deployed lawyers, organizers, and advocates across all 50 states to make sure that every eligible voter’s ballot was counted and to ensure the will of the American people was not subverted.

The promise of democracy

As of this writing—though Donald Trump has lost the election and the formal transition process has begun—he has still refused to acknowledge defeat. Instead, Trump, and many of his political allies, are desperately clinging to baseless claims of mass voter fraud, even though every single legal challenge filed has failed to produce a shred of evidence.

"Democracy works better when more people participate in it."

Trump’s continued denigration of democratic norms ultimately won’t stop Joe Biden from assuming power. But his rattling of people’s faith in our entire electoral system will reverberate for some time. His political allies in states across the nation will undoubtedly seize upon this uncertainty to justify introducing more and more laws that disenfranchise voters.

One thing is clear: the ACLU will fight to not only block voter suppression efforts, but to expand voter participation. Because democracy works better when more people participate in it.

The national ACLU and state affiliates will work in coordination to:

• Dismantle a patchwork of laws that prevent approximately six million Americans with felony and, in several states, misdemeanor convictions from voting.These laws date back to the Jim Crow era and were intended to prevent Black people from voting and to protect White minority rule. While New Mexico allows people who complete their sentences to vote, our state prevents people currently serving sentences from participating in democracy. We’ll work to ensure that incarcerated people are not stripped of their fundamental right to vote as a form of punishment.

• End unnecessary voter ID laws that disenfranchise people of color, transgender people, people with disabilities, people with low-income, and elderly people, who frequently have difficulty obtaining IDs, because they cannot afford or cannot obtain the underlying documents required to obtain government-issued photo ID cards, or, because of backward laws that do not allow gender changes on official IDs.

• Expand automatic and same-day registration, in-person early voting, and no-excuse absentee voting.

• Mobilize supporters to pass the Voting Rights Advancement Act, which would update the Voting Rights Act to ensure equal voting participation for all Americans and undo the damage inflicted by the Supreme Court in 2013, when it gutted vital protections against discrimination guarenteed in the historic 1965 law.

Undoubtedly, self-serving and un-American politicians will continue to try to manipulate political outcomes in their favor. But the ACLU will be there every step of the way to stop them. Nothing is more fundamental to our democracy than the right to choose our elected leaders and, ultimately, the America we want to live in. A record number of people braved a global pandemic for this promise. We will never stop fighting to ensure that the rightto participate in democracy is not reserved for a privileged minority, but for all of us.

It was 9:30 at night when Joseph Lundstrom’s dog started barking, and he heard the sound of someone rapping on his front door. Not expecting any visitors at such a late hour, Lundstrom cautiously opened his front door when he was immediately blinded by a light shining directly into his eyes, and heard a woman identify herself as an Albuquerque Police officer.

Lundstrom recalls, “When the lady showed up at my front door, there’s no cop car out front. She’s hiding behind the bushes, shining the light on my front door.”

Alarmed by the unexpected appearance of someone claiming to be law enforcement, Lundstrom asked the officer to produce identification. She refused.

“Everything was wrong,” said Lundstrom. “That’s what set it all off. I wanted an ID. Then she pulled her gun.”

Unbeknownst to Lundstrom, a neighbor had called 911 earlier in the evening after hearing what appeared to be a possible case of child abuse in progress. The neighbor mistakenly gave Lundstrom’s address to the dispatcher as the location of the incident, setting the stage for the ensuing nightmare for Joseph Lundstrom and his girlfriend Jane Hibner.

The responding officer, Deborah Romero, demanded entry to Lundstrom’s home at gunpoint to investigate a report of child abuse. Unsure whether Officer Romero was actually a police officer, Lundstrom refused to allow her into his home and informed Romero that he did not have children. As Lundstrom turned to walk away to call 911 himself, Hibner opened the door and walked onto the frontporch to talk to the officer herself, closing the door behind her. Officer Romero immediately proceeded to place Hibner in handcuffs and called for backup, claiming that Lundstrom had barricaded himself in the house.

When backup officers arrived, despite receiving new information from the 911 dispatcher that the original caller may have provided the wrong address, they proceeded to detain Lundstrom, forcing him to the ground, wrenching his shoulder back, and pinning him down with a knee or elbow on the back of his neck. As Lundstrom was handcuffed and placed in the back of a police car, the officers proceeded to ransack his house, searching in drawers and other places far beyond the scope of a search intended to ascertain the safety of children that might be possibly inside. The interior of his house was destroyed.

After suffering the trauma of wrongful arrest, excessive force, and the ransacking of their home by Albuquerque police officers, Lundstrom and Hibner filed a lawsuit in the courts seeking justice for their ordeal. The judge threw out their complaint, citing qualified immunity.

Disgusted at the callous lack of justice from the courts, Lundstrom quit his job of 25 years at Sandia National Laboratory, sold his house, and moved away from Albuquerque.

“I lost faith,” said Lundstrom. “I think it was the first time when the judge sat down and said, ‘Ah, they’re police officers, they’re allowed to make mistakes.’”

The ultimate Catch-22

So how did such a callous and dangerous instance of bad policing result in zero consequences for the officers involved? Two magic words: qualified immunity. Qualified immunity is a legal concept invented out of whole cloth by the U.S. Supreme Court beginning in the late 1960s to protect police officers from ‘frivolous lawsuits’ and financial liability when they were acting in good faith under circumstances where the law might not be completely clear. At first blush, that might sound entirely reasonable. Who would want to punish someone who was doing their best in a tough situation?

The problem is that qualified immunity has made it practically impossible to hold law enforcement and other public officials accountable when they violate people’s constitutional rights. The framers of the U.S. Constitution anticipated that all government authority is bound to be abused, so they built in mechanisms to protect individuals.

In Section 1983 of the U.S. Constitution, they laid out that individuals have the right to sue the state and agents of the state for violations of their civil rights. This is crucial, because without this means of redress, the Bill of Rights is just an unenforceable piece of paper.

One of the key provisions of qualified immunity is that it shields law enforcement from civil suits unless a court determines an officer has violated “clearly established law.” Again, the language on its face sounds reasonable, but in application qualified immunity is one of the leading drivers of injustice in the U.S. legal system. The standard of “clearly established law” has been interpreted by the courts to mean that an officer can’t be held liable for violating an individual’s rights unless a previous case exists with almost the exact same set of facts in which the court has ruled a police officer violated an individual’s civil rights. Here’s some examples of what that has looked like in the real world:

• In 2014, a homeless man named Alexander Baxter was chased by police officers and a police dog in Nashville, TN after he was spotted in the vicinity of a reported robbery. When Mr. Baxter sat down and raised his hands to surrender, the officer released the dog, who mauled Baxter so severely he had to be hospitalized. When Baxter filed a lawsuit, the court threw it out citing qualified immunity because in the closest prior case where wrongdoing had been determined a man had been mauled by a police dog while lying down—not sitting with his hands up.

• Also in 2014, a Coffee County, Georgia Sheriff’s Deputy Michael Vickers was attempting to execute a warrant for a criminal suspect when the ensuing pursuit spilled over into a nearby family’s yard. When the family dog challenged the deputy’s intrusion, Vickers opened fire on the family pet and accidentally shot a ten-yearold child in the leg, one of three children in the yard with the dog. When the family sued, the judge granted qualified immunity to the officer because no earlier case held that it was unconstitutional for a police officer to open fire into a group of children.

• In 2016, a Texas prison guard sprayed an inmate named Prince McCoy in the face with a can of pepper spray for no reason. The guard’s use of force was determined by the prison to be unreasonable, and he was placed on three months probation. McCoy sued for damages, but the Fifth Circuit Court of Appeals determined that the prison guard had qualified immunity because similar cited cases had involved guards who had hit or tased inmates for no reason—not pepper sprayed them for no reason.

These cases are glaring examples of how qualified immunity has perverted justice to the point of absurdity. Extreme hair-splitting allows any number of heinous abuses to go unanswered just because the specific details of abuse do not conform to specific details in instances of past abuse. In a further Kafkaesque twist, when cases are thrown out because their novel circumstances permit qualified immunity, it renders it nearly impossible to create precedents that would prevent the use of qualified immunity in similar cases moving forward. It’s the ultimate Catch-22.

Doctors, lawyers, barbers, and construction workers are all expected to follow the law and can be sued for serious misconduct, but qualified immunity gives police and certain other public officials what amounts to a “get out of court free” card. Cloaked in qualified immunity, law enforcement officers everywhere are emboldened to use excessive force, knowing full well that they are highly unlikely to face any consequences. This of coursehas an outsized impact on people of color, who experience excessive use of force at far higher rates than White people, and further entrenches a culture of racist violence in police departments across the nation.

The Way Forward

“Qualified immunity as it exists today cannot stand if we are to live in a just society,” said Barron Jones, Senior Police Strategist for the ACLU of New Mexico. “There is a crisis of accountability throughout New Mexico’s law enforcement agencies, corrections system, and other public officials who are shielded by qualified immunity. We must do away with this incredibly destructive doctrine if we want our courts and legal system to ever be a meaningful avenue for addressing civil rights violations in our state.”

To that end, the ACLU of New Mexico is working with a diverse set of groups, including local trial attorneys, the Innocence Project, and conservativeleaning Americans for Prosperity, to pass the New Mexico Civil Rights Act (NMCRA) in the upcoming 2021 legislative session. The NMCRA would be a groundbreaking piece of legislation that would effectively abolish qualified immunity as we know it in New Mexico. Currently, New Mexico’s laws are too narrow to allow individuals to successfully sue police and other public officials for constitutional violations, and lawsuits in Federal Courts are often dead ends due to qualified immunity. The NMCRA would finally open up legal avenues in state court for New Mexicans to find justice when police and other public officials violate their rights.

“By improving police accountability through the New Mexico Civil Rights Act, we stand to improve a whole host of problems created by qualified immunity in our state,” said Jones. “Not only will it provide a meaningful path for justice when people’s rights are violated, it will incentivize law enforcement departments throughout the state to adopt and properly enforce policies and procedures that protect the rights of New Mexicans. These changes collectively have the potential to improve public trust in law enforcement, and even save public dollars by disincentivizing abusive cultures in police departments across the state. ”

Everyone wants a justice system that is fair, but qualified immunity has its thumb placed firmly on one end of the scales of justice. Law enforcement officers occupy a position of great power in our society, so much so that they are authorized to kill people under certain circumstances. That kind of power, without an adequate counterbalance of oversight and accountability, will inevitably be abused. For decades, qualified immunity has provided a blank check for officers to abuse their power without consequence. It is time to tear it up.