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Lawsuits vs. Lobbying
To litigate or not is a tricky question. While many civil-rights attorneys subscribe to a sue-first, ask-questions-later attitude, the ACLU of Utah is leaning toward a tack of more aggressive behind-the-scenes wrangling.

The lack of lawsuits since 2005 is not for a lack of controversial laws and practices, most notably Senate Bill 81 in 2008.

When this omnibus immigration bill was introduced in the Legislature in 2008, it immediately instilled panic in Utah’s undocumented and documented immigrant communities with its broad-sweeping requests for employment verification and allowing for local law enforcement to be cross-deputized with U.S. Immigration and Customs Enforcement powers.

When the bill became law on July 1, 2009, however, the ACLU of Utah did not file a lawsuit, despite similar lawsuits placed against comparable legislation in states like Oklahoma. Instead, the ACLU of Utah initiated a number of community forums to discuss immigration reform and the impacts of the bill.

If there’s anyone who’s pleased with that outcome, it’s Salt Lake City attorney Roger Tsai, a veteran immigration attorney and board member of the Salt Lake Chamber Immigration Taskforce.

“The ACLU hasn’t sat around doing nothing,” Tsai says, citing the informational guides the ACLU of Utah created in English and Spanish to educate people about the impacts of the bill. The outreach and the forums, Tsai says, have had more impact than a lawsuit likely ever could.

“In some ways, [outreach] is even more important than a lawsuit. I think it’s more important to get information to the immigrant community about what [SB 81] actually means to them,” he says. “The most detrimental part to that community is the kind of fear and rumors it generates, rather than the actual substance of the law.”

In another instance, outrage over discounted ballots during the 2007 Ogden mayoral race resulted not in a lawsuit, but a new state law. In 2007, thousands of voters were shocked to find that, when they showed up at their polling locations, their eligibility as voters had been challenged, forcing them to cast a provisional ballot. With hundreds more than usual provisional ballots turning up, overwhelmed election staff had to throw out many votes because they could not confirm the eligibility of the voters.

“Unfortunately, the way the law was drafted, somebody could submit a list to the county clerk saying, ‘I think all of these people are ineligible to vote,’ without any factual sort of basis,” says Marina Lowe, the legislative liaison for the ACLU of Utah and former legal director.

Pulling the trigger on a lawsuit would have required the ACLU of Utah to prove that the discarded ballots would have changed the outcome of the election—a time-consuming and costly effort to even get the complaint off the ground. Instead, the ACLU of Utah spent two years working with legislators, elections-office officials and county clerks to develop a bill passed by Sen. Peter Knudson, R-Brigham City, during the 2010 Legislature to protect voters’ rights at the polling place. The bill requires that if a vote is to be challenged, it has to be done before Election Day. Further, the challenger must provide facts to back up the claim under penalty of perjury and the challenged voter must have time to respond to the challenge.

“It’s really great that the ACLU has multiple tools to use,” Lowe says. “In this case, a lawsuit couldn’t effect the change that we wanted.”

Cost is another consideration. While the ACLU of Utah Foundation’s most recent 990 tax filing, for 2008, shows the organization had $643,264—slightly more net assets than 2007—recent changes in national funding have put chapters on notice all across the country. In 2009, The New York Times reported that the national ACLU had lost its largest donor, David Gelbaum, who annually donated more than $20 million to the organization, often making up as much as 25 percent of the organization’s budget.

According to ACLU of Utah’s newsletter for January 2010, The ACLU Reporter, it was unclear what the budgetary trickle-down effect would be for state offices, but “the ACLU is engaged in belt-tightening at every level of the organization. The ACLU of Utah benefits greatly from the national ACLU office.”

Robert Wood, the current ACLU of Utah board president, actually sees the budget as a nonissue. “The year we just ended, we had a surplus,” he says. “People have really stepped up, and we haven’t had to cut back [operations].”

Wood also doesn’t see the lack of lawsuits as representative of a lack of advocacy. “We’ve had a streak for a while where just the threat of litigation brought out pretty good results for us,” Wood says. “We just say, ‘You keep doing this, and we’ll have to sue you,’ and they say, ‘Yeah, we’ll stop doing it.’ ”