On this episode, we’ll be talking about nonprofit advocacy to ensure all eligible people can exercise their right to vote and the fight against new legislation—with a decidedly partisan aroma—that aims to restrict those rights.  

Attorney Co-hosts   

Tim 

Quyen  

Ronnie 

Record turnout in November 

Americans voted in record numbers in last year’s presidential election, casting over 158 million ballots.  

More than six-in-ten people of voting age and nearly two-thirds of estimated eligible voters,  

Source: Pew Research Center  

False claims of voter fraud 

Brennan Center: “Politicians at all levels of government have repeatedly, and falsely, claimed the 2016, 2018, and 2020 elections were marred by large numbers of people voting illegally. However, extensive research reveals that fraud is very rare, voter impersonation is virtually nonexistent, and many instances of alleged fraud are, in fact, mistakes by voters or administrators. The same is true for mail ballots, which are secure and essential to holding a safe election amid the coronavirus pandemic.” 

The fallacy of the “election integrity” movement 

False claims of election problems in 2020 

Led directly to the Capitol Insurrection in 2021 

No proof to any of the claims (over 50 lawsuits, all dismissed on the substance) 

New arguments: people think the election was fraudulent, so laws need to change to reflect that 

Efforts to oppose the bills across the country  

Georgia 

On March 25, Georgia Governor Brian Kemp signed in to law a bill that will make it more difficult for voters to make their voices heard at the polls.  The  legislation contains several troubling provisions, including those that limit the amount of time available to voters to request absentee ballots, impose strict new ID requirements for some voters, and effectively ban the use of mobile voting centers. The signing of the law prompted swift legal challenges and opposition from corporate interests. (Source: Bolder Advocacy) 

Texas 

Senate Bill 7, which would limit extended early voting hours, prohibit drive-thru voting and make it illegal for local election officials to proactively send applications to vote by mail to voters, even if they qualify. (Source: Texas Tribune) 

Federal legislation being considered to combat this?  

Litigation challenging the laws. 

What we can do 

• Offer Public Testimony (rules: may be lobbying) 
• Write an Op-Ed: (rules: unlikely to be lobbying unless it has call to action) 
• Engage in Corporate Advocacy (rules: may be lobbying – it depends) 
• Team Up (rules: coalitions, may be lobbying)  
• None of this is prohibited election intervention (all (c)(3)-friendly but take care with how your efforts are characterized) 

Resources 

When voting rights are under attack, what should nonprofits do? by Natalie Ossenfort 

The States Where Efforts To Restrict Voting Are Escalating, fivethirtyeight 

How GOP-backed voting measures could create hurdles for tens of millions of voters, Washington Post 

Voting Laws Roundup, Brennan Center 

State Voting Bills Tracker 2021, Brennan Center 

Being a Player – lobbying rules 

The Connection – coalition rules 

Coalition Checklist – coalition rules 

The proliferation of hate speech has fanned the flames of anti-Asian sentiment with messages associating China with the COVID-19 pandemic, all while downplaying the real and present threat of domestic terrorism fueled by white nationalism. And as we have seen over and over, speech has consequences with blood on the hands of murderers — not only in recent shootings but for the consistent escalation of violence against Asian Americans and others. 

A disturbing combination of widespread prejudicial sentiment and easy access to guns makes tragedies like this far too common. Messages of misogyny, xenophobia, and white supremacy fill the air we breathe, masquerading as conservative sentiment as they infect the minds of those who could be spurred to act violently. In recent years, we have seen targeted attacks against people of color, religious minorities, the LGBTQ community, and other vulnerable populations, and we have failed to address the patterns of who commits these atrocities and what inspires and allows them to do so. 

On this episode, we’ll be talking about nonprofit advocacy against hate, bigotry, and discrimination.   

Attorney Co-hosts  

Jen 

Quyen 

Shyaam 

Introduction 

• Nonprofits have an essential role to play in fighting hate in all its forms, by educating the public, pressuring elected officials and candidates, and organizing community members to raise awareness about identity-based violence and discrimination. We’re going to highlight a few nonprofit advocacy efforts today, and talk about how you can stand up to hate as a nonprofit organization.  

• We have to acknowledge what’s happening now and our collective past history  

• Attacks against people based on their race or ethnicity 

• Rise in hate incidents and hate crimes against APA community because of Trump’s insistence on blaming China for the coronavirus 

• Between March 2020 and Feb 2021, almost 3,800 incidents reported to Stop AAPI Hate. Fraction of the real number. 

• Attacks against Middle Eastern, Arab, or Muslim Americans after 9/11 

• LGBTQIA+, violence against trans-people 

• We want to be clear that we know there’s so many ways hate is spreading right now, but we chose to lift up a few examples to affirm for public charities that Combating Hate is always on mission.   

• This episode isn’t heavy on rules.  If you’ve been listening, you know that public charities can’t be partisan and that to determine partisanship, the IRS will apply the facts and circumstances test to campaigns and communications.   For 501(c)(3) organizations, the important analysis will be to understand an organization’s risk and the continuity of its messages.  

Example 1: Briefly Review the Facts and Circumstances Test for Public Charities. What about anti-hate messaging when connected to voting – e.g., vote for love not hate! 

• The IRS will apply a facts and circumstances test and while we don’t know everything the IRS would look at, here’s examples of how we would walk through the analysis. 

•  Does the communication or ad or website reference a candidate or election? (that’s a no-no) 

•  Is there some other external factor influencing the campaign like a bill up at the state house?  

• Is this part of the on-going mission of the public charity? And is this messaging similar to or in connection with other forms of communications on the topic (i.e., part of an on-going long-standing campaign). 

• If it’s a wedge issue, or looks like a campaign slogan, a nonprofit public charity should proceed with caution.   

 Example 2: NAKASEC.  The National Korean American Service & Education Consortium has an affiliated—or connected—501(c)(4) known as the NAKASEC Action Fund.  In 2020, NAKASEC AF wanted to forcefully push back against a Virginia Congressional Candidate selling a mask that suggested the coronavirus was “Made in China.”  This phrase was on the mask. They ended up releasing statements and a letter, and organized with partners. They explained that blaming China for the COVID-19 crisis has led to a sharp increase in racially motivated attacks against people of Chinese descent and others perceived to be of Chinese descent. In fact, in March of 2020, the FBI warned that hate crimes against Asian Americans were likely to rise because of perceptions that people of Asian descent were spreading the virus. Their advocacy was picked up by major media outlets. You can find stories on NAKASEC AF’s advocacy against these masks in the Washington Post, Fox News, NBC News, and numerous local outlets in Virginia. After a few days with public pressure, the candidate pulled the masks! 

• As far as the rules go, 501(c)(3)s may not support or oppose candidates for public office, but c4s can, to a limited extent. there is room to even suggest candidates should be held accountable for actions like these in the election.  

• Anti-hate is always on mission. Even though a 501(c)(4) took the action above, through our analysis, we think a 501(c)(3) likely could have as well.   

• Example 3: Ahmaud Arbery “Finish the Run” event. Runner’s World is a 501(c)(3) nonprofit but utilized its platform to call in various ways to run against hate.  It even created a separate foundation to Finish the Run.   https://www.runnersworld.com/news/a35521521/ahmaud-arbery-virtual-run-finish-the-run  

• This is a great example of using your platform to fight discrimination even when the core of your mission is based on something else (here supporting and promoting running).  

•  Example 4: Muslim Advocates. Muslim Advocates is a 501(c)(3) often calls out elected officials and other leaders for bigoted language against Muslims – for example, inventing threats posed by Muslims to the country, misinformation about what Islam requires of followers, or advocating for policies that would be a violation of basic constitutional rights of Muslims. Muslim Advocates has even done a report on campaigns in the past that have featured anti-Muslim rhetoric.   

• There are a number of important points about these efforts, even though some were around elections. Where MA spotlighted or went into detail – it was around campaigns in elections that had already passed. They included disclaimers in their report, and they tried to summarize and describe the nature of comments rather than advocate for the election or defeat of any particular candidate or candidates. If you’re talking about campaigns and elections that have already passed, it’s important to not take credit for an outcome. It’s going to be risky to discuss campaigns still pending or upcoming elections – however, you could discuss comments in the aggregate.  

• It’s still possible to be forceful, clear, and strong against hate as a 501(c)(3). 

Bolder Advocacy Resources 

Commenting on Candidates and Campaigns: https://www.bolderadvocacy.org/wp-content/uploads/2012/08/Commenting_on_Candidates_and_Campaigns.pdf  

Commenting on Candidates’ Statements about Immigrants: https://www.bolderadvocacy.org/wp-content/uploads/2018/06/Commenting-on-Candidates-Statements-about-Immigrants.pdf 

LGBTQ Toolkit: https://bolderadvocacy.org/wp-content/uploads/2018/07/LGBTQ-toolkit-2019-Final.pdf  

Press Statement on Atlanta Attacks:  https://www.afj.org/article/afj-condemns-hateful-attack-on-asian-americans/ 

Other resources: 

Department of Justice: https://www.justice.gov/hatecrimes, has link to state specific information 

LCCR Stop Hate: https://lawyerscommittee.org/project/stop-hate-project/  

Stop AAPI Hate: https://stopaapihate.org/ 

Muslim Advocates: https://muslimadvocates.org/advocacy/addressing-anti-muslim-political-rhetoric/ 

NAKASEC Action Fund’s letter: https://nakasecactionfund.org/11546 

Bob Jones University v. United States:  https://www.law.cornell.edu/supremecourt/text/461/574