Tenn. State Conference of the N.A.A.C.P. v. Hargett
| Decision Date | 09 September 2019 |
| Docket Number | Case No. 3:19-cv-00365 |
| Citation | 441 F.Supp.3d 609 |
| Parties | TENNESSEE STATE CONFERENCE OF THE N.A.A.C.P., Democracy Nashville-Democratic Communities, The Equity Alliance, and The Andrew Goodman Foundation, Plaintiffs, v. Tre HARGETT, in his official capacity as Secretary of State of Tennessee, Mark Goins, in his official capacity as Coordinator of Elections for the State of Tennessee, the State Election Commission, and Donna Barrett, Judy Blackburn, Greg Duckett, Mike McDonald, Jimmy Wallace, Tom Wheeler, and Kent Younce, in their Official Capacities as Members of the State Election Commission, Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
Allison M. Ryan, Carolyn A. DeLone, Kyle Druding, Madeline Gitomer, Hogan Lovells US LLP, Ezra D. Rosenberg, Jon Greenbaum, Julie Houk, Pooja Chaudhuri, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Daniel Yoon, Law Office of Daniel Ayoade Yoon, Nashville, TN, Ira M. Feinberg, Hogan Lovells US LLP, New York, NY, Taylor A. Cates, Burch, Porter & Johnson, PLLC, Memphis, TN, Yael Bromberg, Bromberg Law LLC, Upper Saddle River, NJ, for Plaintiffs.
Alexander Stuart Rieger, Andrew B. Campbell, Kelley L. Groover, Tennessee Attorney General's Office, Nashville, TN, for Defendants.
The defendants have filed a Motion to Dismiss (Docket No. 21), to which the plaintiffs have filed a Response (Docket No. 31), and the defendants have filed a Reply (Docket No. 33). For the reasons set out herein, that motion will be denied.
Tennessee relies on popular elections to select (or, in a few cases, decide whether or not to retain) many of the state's most important state, local, and federal officials. E.g. , U.S. Const. art. I, § 2, cl. 1 (U.S. Representatives); U.S. Const. amend. XVII (U.S. Senators); Tenn. Const. art. II, § 7 (state legislators); Tenn. Const. art. III, § 2 (Governor); Tenn. Const. art. VI, § 3 (state appellate judges); Tenn. Const. art. VI, § 4 (); Tenn. Code Ann. § 2-15-101 (presidential electors); Tenn. Code Ann. § 5-6-102 (county mayors); Tenn. Code Ann. § 6-3-101(a) (aldermen); Tenn. Code Ann. § 6-20-201(a)(3) (city mayors); Tenn. Code Ann. § 6-31-101(a) (city council members); Tenn. Code Ann. § 16-18-201 (city judges); Tenn. Code Ann. § 49-2-201(a)(1) (). Sometimes, Tennessee voters directly change state or local laws via ballot measures. See, e.g. , Tenn. Const. art. XI, § 3 (constitutional amendment); Tenn. Const. art. XI, § 9 (municipal home rule); Tenn. Code Ann. § 6-51-105(a) (municipal annexation); Tenn. Code Ann. § 6-51-201(a) (); Tenn. Code Ann. § 6-51-403(b) (merger of municipalities); Tenn. Code Ann. § 6-52-202 (); Tenn. Code Ann. § 7-2-106(a) (); Tenn. Code Ann. § 49-2-501(a)(2) (); Metro. Gov't of Nashville & Davidson Cty, Tenn., Charter § 19.01 (charter amendment). But, unfortunately, not all Tennesseans vote. Some do not vote because they choose not to, or they forget, or they do not even think about it. Some Tennesseans do not vote because they do not meet the state's requirements for "qualified voters," due to their age, their citizenship status, or their "infamy" based on a past felony conviction from which they have not had their voting rights restored. See Tenn. Code Ann. §§ 2-2-102, 40-20-112, 40-29-202(a). In any given election, however, there are some Tennesseans who are qualified to vote and would like to do so, but who cannot, because "[o]nly qualified voters who are registered ... may vote at elections in Tennessee." Tenn. Code Ann. § 2-1-105 (emphasis added).
The only way to be "registered under" the state's voter registration system is if one "applies to register" with the appropriate county election commission. Tenn. Code Ann. § 2-2-104(1) ; see Tenn. Code Ann. §§ 2-2-101(2), 2-2-303. A person applying to register must complete a form, on which she provides certain information that establishes her identity and qualifications as a voter. The Tennessee General Assembly requires that the form contain the person's name, sex, address of legal residence, mailing address if different from residential address, social security number, date and place of birth, citizenship status, prior place of voter registration, history of felony convictions, and a declaration of permanent residency. Tenn. Code Ann. § 2-2-116. The application can be completed in person at the office of the county election commission or at a number of other state and local government offices that Tennessee or the county has directed to accept applications and transmit them to the commission. Tenn. Code Ann. §§ 2-2-108(a)(1), 2-2-111(a), 2-2-201, 2-2-202. In addition to in-person registration, Tennessee has an online voter registration system, see Tenn. Code Ann. § 2-2-112, and allows registration by mail, see Tenn. Code Ann. § 2-2-115(a). Unless a prospective voter applies to register at least thirty days before an election day, the voter will not appear on the voter rolls for that election. Tenn. Code Ann. § 2-2-109(a).
A number of organizations and individuals, recognizing that a lack of registration is the only legal obstacle preventing many Tennesseans from voting, engage in activities intended to assist unregistered qualified voters in filing registration applications. Some of those efforts are small and informal, between friends, family, neighbors, and coworkers. Other efforts to assist in voter registration are larger and directed at the broader public, such as the operation of voter registration desks at schools, community centers, concerts, and other locations frequented by unregistered prospective voters. These efforts historically have involved collecting paper registration forms, although modern technology also allows organizations to assist voters in registering electronically.
Despite those formal and informal efforts to boost registration, the number of registered voters in Tennessee still lags far behind the number of qualified voters. Data compiled by the Pew Charitable Trusts suggests that Tennessee has a voter registration rate of 78.57%, among the worst in the nation. (Docket No. 1 ¶ 31.) That rate is even lower in low-income communities and communities with more racial and ethnic minorities. (Id. ¶ 32.) According to U.S. Census Bureau data, people of color and individuals between the ages of 18 and 29 report disproportionately that they are not registered to vote because they do not know how. (Id. ¶ 33.)
Voter registration drives are not without risk. For example, it is at least possible that an individual or organization could collect voter registration applications and either never turn them in or turn them in only after waiting an unreasonable period of time, causing people not to be registered in elections in which they wish to participate. A voter registration drive might also collect applications that are incomplete or incorrectly filled out—although, of course, registration applicants could also fill out forms incorrectly on their own, without the assistance of a voter registration drive. In light of the supposed dangers associated with improperly performed voter registration drives, the Tennessee General Assembly, on April 29, 2019, enacted several new provisions governing the operation of drives in the state. ELECTION OFFENSES, 2019 Tenn. Laws Pub. ch. 250 (H.B. 1079) (hereinafter, the "Act"). On May 2, 2019, Governor Bill Lee signed the Act into law, and its provisions are slated to "take effect" on October 1, 2019. 2019 Tenn. Laws Pub. ch. 250, § 9.
The Act leaves in place the preexisting state and local government structures for voter registration and does not purport to govern every situation in which one person helps another register to vote. The first few of its requirements, which govern how voter registration drives can be performed, mostly apply to private organizations or individuals who operate voter registration drives in which they "attempt[ ] to collect voter registration applications of one hundred (100) or more people." Tenn. Code Ann. § 2-2-142(a).3 These requirements include an exception for "individuals who are not paid to collect voter registration applications or ... organizations that are not paid to collect voter registration applications and that use only unpaid volunteers to collect voter registration applications." Tenn. Code Ann. § 2-2-142(g). An organization is also excepted if it is the "designee" of the county election commission for the purposes of operating certain county-supervised voter registration activities. Tenn. Code Ann. § 2-2-142(a). The Act then establishes a system of potential monetary penalties for entities covered by the new requirements. Tenn. Code Ann. § 2-2-143. The State Election Commission is empowered to engage in rulemaking in furtherance of the penalty provisions, but rulemaking is permissive, rather than mandatory, and there is no language delaying the Act's requirements until rulemaking takes place. Tenn. Code Ann. § 2-2-143(f).
The Act next sets forth several ethics and conflict-of-interest requirements related to procurement of voting systems, see Tenn. Code Ann. § 2-9-118, none of which are at issue in this case.
Finally, the Act imposes a number of requirements on organizations that communicate to the public about voter registration, including, in particular, parties that operate websites that either facilitate voter registration or allow voters to look up individual voter registration information.
These requirements, unlike some of the registration drive requirements, apply no matter how many voters, if any, the party attempts to register. See Tenn. Code Ann. § 2-2-145. This portion of the Act does not...
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