An obscure West Virginia law that came to light during the teachers strike gives police expansive powers to crack down on peaceful protesters. While the strike ended on Tuesday with a victory for the teachers, lawmakers should still address the deficiencies of the state’s “crimes against the peace” law — its literal riot act.

The law, as interpreted by a 1946 court case, allows law enforcement officers to employ a range of troubling and archaic responses to groups engaging in “unlawful” behavior. Among other things, it allows them to force private individuals to help shut down the group, search homes nearby without a warrant, and impose guilt-by-association on anyone present if an officer is wounded. These terms are not far from the original “Riot Act” passed by the British Parliament more than 300 years ago — which makes sense, since the West Virginia law largely reflects language drafted in 1849.

This law, as it stands, could have been used against the striking teachers — and it can still be used against all manner of protesters if it is not updated.

A bill ostensibly meant to bring the law into the 21st century was introduced before the strike began, but the revisions fall short. The bill would eliminate one of the law’s most disturbing provisions, which provides that if an officer dies or is wounded at an unlawful assembly, everyone present is guilty. But the bill would still allow police officers to commandeer private citizens to help disperse a crowd. And the existence of an “unlawful assemblage, rout, or riot” would still authorize police to search homes without a warrant and impose a curfew.

This means the law could be used to impose harsh measures against a group of entirely peaceful protesters and those around them — individuals who, say, step off a sidewalk and onto a street because of the number of people nearby, or who can’t hear a dispersal order or get out of a crowd quickly enough once it is deemed unlawful.

In many ways, these dangers mirror the troubling nature of the broader anti-protest legislative trend around the country. Rather than address the substantive issues raised by the powerful protests of the last two years — like racial justice, environmental protection, and the rights of indigenous communities — legislators have instead chosen to introduce bills that would pressure protesters to quiet their dissent.

In many states, these legislative efforts ignore existing law. In Iowa, for example, a new bill, supported by industry groups reacting to anti-pipeline protests, is framed as necessary to “protect critical infrastructure” — including, unsurprisingly, pipelines. If passed, it would not only chill environmental protest, but it would replicate an existing law that already criminalizes property damage. In Wyoming, legislators are considering a similarly repetitive and harmful bill.

In West Virginia, lawmakers are now in danger of reaffirming an existing, antiquated law. It’s well past time for that legislature, and legislatures around the country, to bring laws that chill protesters into the 21^st century.

Dear students,

We Nevadans know all too well the pain and trauma of a mass shooting, and as students across the country mobilize to force change in the wake of the Parkland, FL tragedy, the issue of free speech in schools is once again at the forefront of American dialogue. The ACLU of Nevada supports your right to be heard on this issue, and we encourage you to contact us at [email protected] if you face any issues related your political speech.

KNOW YOUR RIGHTS: STUDENT WALKOUTS AND POLITICAL SPEECH AT NEVADA SCHOOLS

It is well established that students do not “shed their constitutional rights to freedom of speech and expression at the school house gate” (Tinker v. Des Moines Independent Community School District, 1969). The ACLU has fought for this principle since Mary-Beth Tinker entered her Des Moines, Iowa classroom in 1965 wearing a black armband in protest of the war in Vietnam. Indeed, we defended the right for students to wear clothing expressing anti-abortion views, support for the LGBT community, and even the right for students to protest the ACLU. 

Schools may only punish speech or expression at school if it causes a “material” or “substantial” disruption on campus. This means school administrators must show that the speech or expression will actually interfere with school activities or with the rights of other students. It is constitutionally impermissible to punish a student for the mere act of walking out of class without evidence that doing so caused a material and substantial disruption. 

We think your school should be working with you to avoid possible disruptions. School administrators, for example, can take reasonable steps to plan for a silent classroom walkout. They can also work with students to provide an alternative activity. Some school administrators are working with students to engage in symbolic activities such as walking around campus seventeen times or placing desks in the common area of the school in remembrance of the lives lost in the Parkland shooting. 

Even if a school can demonstrate that a walkout caused a material or substantial disruption, they cannot excessively punish a student for participating in protest activity, or enact harsher punishment than would be given for a similar unexcused absence. The First Amendment to the U.S. Constitution prohibits school officials from engaging in viewpoint discrimination or punishing students because of their expression. Punishing a student more stringently for an absence associated with protest activity than for an absence associated with any other activity is unequivocal viewpoint discrimination. Thus, the consequences for a student who engages in civil disobedience by missing class to attend a protest must be the same as a student who misses class for any other purpose. 

If you're interested in participating in a protest, the first thing you should do is look up your school's policies.

In Nevada, children between 7 and 18 years old are required to attend school. A single unexcused absence is considered a “truancy,” the punishment for which is parental notification. A student is considered “habitually truant” after accruing three or more unexcused absences in one school year. School administrators may punish a student for habitual truancy after an administrative hearing and punishments are limited to a citation or revocation of driving privileges for up to one year. If a student chooses to participate in a walkout protest and is marked tardy or absent they should only be subject to these punishments already prescribed by law. 

Several students have contacted our office to report threats by school officials to withhold honors diplomas, remove students from sports teams, and to suspend students for participating in planned walkouts. These forms of punishment far exceed those permitted by statute and are constitutionally suspect. The ACLU of Nevada takes these allegations seriously and will investigate each incident of excessive punishment reported to our office. 

From Des Moines, to Parkland, to here in Nevada, we will continue to defend the right of students to engage in constitutionally protected speech and expression. We hope school administrators will do the same by creating an environment where students can meaningfully express their views. 

We warned Nevada school districts about all of this on Thursday. Contact us if you have any problems at [email protected].

In liberty,

The ACLU of Nevada staff

Tuesday was the first day of the Fish v. Kobach voting rights trial. The ACLU and Kris Kobach, Secretary of State of Kansas, squared off over a 2013 Kansas law which requires people to produce citizenship documents, like a birth certificate or U.S. passport, in order to register to vote. Kansas is one of only two states that imposes such a requirement, known as a documentary proof-of-citizenship or the DPOC law.

The ACLU successfully blocked the law in 2016, prevailing in both the federal district court in Kansas and the Court of Appeals for the 10th Circuit. The case is now back before Judge Julie Robinson for trial, the outcome of which will determine whether or not the law is struck down permanently. The ACLU represents the League of Women Voter and individuals disenfranchised by the law, three of whom took the stand to share their experiences. In an unusual move, Kobach — who is being sued in his official capacity as secretary of state — chose to represent himself in court.

Kobach and Dale Ho, ACLU’s Voting Rights Director, each delivered opening statements, which set the stage for the week ahead.

The 10th Circuit’s test

In October 2016, the 10th Circuit court preliminarily blocked Kobach’s DPOC law, finding that “there is no contest between the mass denial of a fundamental constitutional right and the modest administrative burdens to be borne by Secretary Kobach’s office and other state and local offices involved in elections.” This injunction stands until the district court rules — which means that the law will remain blocked until the outcome of the trial.

Kobach has maintained that the law is necessary for Kansas to address the serious problem of noncitizens registering to vote. The 10th Circuit found that, under the National Voter Registration Act, it is illegal to demand citizenship documents unless the state satisfied a two-prong test. Kobach must prove that 1) there are a substantial number of noncitizens registering to vote in Kansas and 2) that nothing less burdensome than the DPOC requirements to fix the problem.

The numbers speak for themselves

Two of Kobach’s witnesses, Brian Caskey, Kansas Director of Elections, and Tabitha Lehman, the Sedgwick County Election Commissioner, stated that since 2000, Kansas has identified 127 individuals — out of 1.8 million voters -- whom they believe were non-citizens at the time that they registered or “attempted” to register to vote. Of those 127 people identified over the last 18 years, 43 appeared to have successfully registered to vote in Kansas and only 11 appeared to have actually cast a ballot.

Instead of using alternative approaches to prevent isolated instances likes this – 11 -- Kansas passed a law which disenfranchised tens of thousands of people. As Dale Ho put it in his opening, “Enforcing this law is like taking a bazooka to a fly. The collateral damage is thousands.”

This was supported by testimony from the expert witness, Michael McDonald, who found that most people who were placed on Kansas’ list of suspended voters did not ultimately become registered. In fact, McDonald found that 70.9 percent or 22,814 people who were suspended as of Sept 24, 2014 remained suspended or were canceled by Dec. 11, 2015.

McDonald further testified that the number of voters blocked by the DPOC law increased even further after December 2015. By March 31, 2016, more than 30,000 people had been blocked. McDonald said the number of blocked applicants would have been expected to go even higher as applications increased closer to the 2016 election.

The law had a disproportionate effect on two groups: younger voters and voters who do not have a political party affiliation. While the short-term consequences of being disenfranchised in a particular election are obvious, McDonald also noted the long-term effects on the habit of voting. People who miss that first opportunity may not show up again.

The voter’s plight

Three Kansans took the stand to explain their experiences in attempting to vote under Kobach’s DPOC regime.

On October 17, 2014, Charles “Tad” Stricker, went to the motor vehicle office to get his Kansas driver’s license, and he had to do it that day. It was the last day to register to vote before Kansas’ registration deadline. When he first arrived, a clerk told him that he needed additional documents in order to get his license. Tad hurried home, got his birth certificate and the documents, and rushed back to the office before closing. He affirmed that he wanted to register to vote, and he received a temporary driver’s license and was instructed that he would receive his official driver’s license and registration card. Come Election Day, Tad and his wife went to the polls together, only for him to be hold that they “did not have him registered to vote.” He was eventually given a provision ballot. He described the experience as, “confusing.” He added, “I felt embarrassed — like I was the one who did something wrong.”

Despite filling out a provisional ballot, Tad found out later that his vote was not counted in the 2014 election. As for his reason for being plaintiff in the case, he said, “It about the principle. The average Kansas citizen shouldn’t have to sue the Secretary of State just to get registered to vote.”

Donna Bucci, a 59-year old who works at the Kansas Department of Corrections, sought to register to vote in 2014 when she was renewing her driver’s license. She left the motor vehicle office believing that she had registered to vote, but later received a letter saying that she needed to show a birth certificate or passport. Donna has never left the county and does not have a U.S. passport. She also did not have the money to spend on ordering a birth certificate from the state of Maryland, where she was born.

On cross examination, the state focused on whether the plaintiffs could have, in theory, found a way to comply with the law. Despite the fact that no one asked Tad for further documents, Kobach wanted to know if he had a smartphone and if Tad could have sent a photo of his passport to the election office. Tad responded, “I don't think that's a very secure way of transferring sensitive personal information — by text message.”

Susan Becker, an attorney for the state, asked Donna whether she could have participated in a telephone hearing on the birth certificate matter on her lunch break. Donna, who isn’t allowed to have her phone with her at job, expressed doubt.

Finally, T.J. Boynton, an English professor at Wichita State University, testified that, like Tad Stricker, he took his birth certificate to the motor vehicle office to register to vote. He found out at the polls in November 2014 that he was not on the list, so he filled out a provisional ballot. At least a month passed after the election before he received a notice that he needed to provide proof-of-citizenship, which he took as notification that his vote had not, in fact, been counted. Later in 2015, when he was at the motor vehicle office to replace his license, he was asked again whether he wanted to register to vote, TJ declined.

“I thought it was futile to register” at the motor vehicle office, he said, “because I had tried to before and it didn’t work.”