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Howard v. State

United States District Court, M.D. Tennessee, Nashville Division

October 27, 2017

JOSEPH T. HOWARD, Plaintiff,
STATE OF TENNESSEE; THE TENNESSEE DEPARTMENT OF SAFETY & HOMELAND SECURITY; and DAVID W. PURKEY, in his official capacity as Commissioner of the Tennessee Department of Safety & Homeland Security, Defendants.



         Pending before the court are cross motions for summary judgment. The State of Tennessee, the Tennessee Department of Safety & Homeland Security (the “Department”), and David W. Purkey, in his official capacity as Commissioner of the Department, (the “Commissioner”) have filed a Motion for Summary Judgment (Docket No. 15), to which Joseph T. Howard has filed a Response in opposition (Docket No. 18), and the defendants have filed a Reply (Docket No. 21). Howard has filed a Motion for Summary Judgment (Docket No. 29), to which the defendants have filed a Response (Docket No. 36), and Howard has filed a Reply (Docket No. 37) and Supplemental Reply (Docket No. 38), to which the defendants have filed a Sur-Response (Docket No. 41). For the reasons stated herein, the defendants' motion will be granted and Howard's motion will be denied. Howard's outstanding Motion to Compel (Docket No. 24) will be denied as moot, and his claims will be dismissed with prejudice.


         This action arises from allegations that Howard, who relocated to Tennessee from Massachusetts in August of 2016, was unable to complete his Tennessee voter registration in time for the November 2016 federal election, despite his attempts to do so in accordance with the procedures required under the National Voter Registration Act (“NVRA”), 52 U.S.C. § 20501 et seq., and implemented by the Department. Pursuant to preliminary relief granted by this court, Howard was able to vote in that election, and he is now a registered Tennessee voter. Although the immediate problem of Howard's lack of a Tennessee voter registration has been solved, he continues to seek declaratory and injunctive relief addressing what he identifies as deficiencies in Tennessee's voter registration procedures under the NVRA.

         A. “Motor Voter” in Tennessee

         “In 1993, Congress passed the NVRA as a measure meant to ‘reinforce the right of qualified citizens to vote.'” U.S. Student Ass 'n Found. v. Land, 546 F.3d 373, 381 (6th Cir. 2008) (quoting Ass 'n of Cmty. Orgs. for Reform Now v. Miller, 129 F.3d 833, 835 (6th Cir. 1997)). The NVRA reflects a determination by Congress that robust participation in federal elections requires, not just granting citizens the abstract right to vote, but “establishing] procedures that will increase the number of eligible citizens who register” to do so. 52 U.S.C. § 20501(b)(1); see Miller, 129 F.3d at 834-35 (recognizing that the NVRA is intended to combat “restrictive or prohibitively inconvenient voter registration requirements that discourage or even prevent qualified voters from registering and participating in elections”). To that end, “[t]he NVRA . . . requires states to take various steps to facilitate voter registration.[1] Nat l Coal. for Students with Disabilities v. Taft, No. 2:00-CV-1300, 2002 WL 31409443, at *2 (S.D. Ohio Aug. 2, 2002). Among the steps required is that the state establish a system pursuant to which “[e]ach State motor vehicle driver's license application (including any renewal application) submitted to the appropriate State motor vehicle authority under State law shall serve as an application for voter registration.” 52 U.S.C. § 20504(a)(1). If the applicant is already registered to vote, the application must similarly serve as an opportunity to update that registration. 52 U.S.C. § 20504(a)(2). This requirement that applicants be allowed to register to vote or update their voter registration “by application made simultaneously with an application for a motor vehicle driver's license, ” 52 U.S.C.A. § 20503(a)(1), is known colloquially as the “motor voter” law. See Bryanton v. Johnson, 902 F.Supp.2d 983, 993 n.8 (E.D. Mich. 2012).

         In 2002, the United States Department of Justice filed suit against the State of Tennessee and several state departments and officials alleging violations of the NVRA. Among the allegations raised by the United States was that Tennessee had failed to “provide applications to register to vote simultaneously with applications for motor vehicle driver's licenses (including renewal applications).” United States v. Tennessee, Case No. 3:02-cv-00938, Docket No. 5 at 2 (M.D. Tenn. Oct. 15, 2002). As a result of that litigation, the United States and the Tennessee defendants entered into a Consent Decree pursuant to which the Department-as the agency charged with administering the state's driver's license scheme, Tenn. Code Ann.§ 55-50-201- was required to create and implement “a single simultaneous application process for voter registration and application for motor vehicle driver's license.” United States v. Tennessee, Docket No. 5 at 10. The Department agreed to discontinue any practice of providing a voter registration application only upon the request of the Tennessee resident engaging in the relevant driver's license-related transaction. Id. The Consent Decree did, however, specifically permit the Department “to use separate forms for applications for a driver's license and voter registration, ” as long as the Department met the NVRA s requirements for doing so.[2] Id. at 11. By its own terms, the Consent Decree expired on August 1, 2005. Id. at 14. The case was closed shortly thereafter. United States v. Tennessee, Docket No. 13 (M.D. Tenn. Aug. 24, 2005).

         Applications for the issuance or renewal of a Tennessee driver's license are made to the Department and reviewed by the Department's examiners. Tenn. Code Ann. §§ 55-50-321, -322, -338. The Department maintains a written policy setting forth how its examiners are to effect the NVRA's motor voter requirements as part of that application process. (Docket No. 31-4.) As had been permitted under the Consent Decree, the Department has promulgated one general form for driver's license applications and relies on a second form for individuals who are also seeking to register to vote. (Docket No. 31-3.) That general application form includes an item whereby the applicant is asked whether he wishes to pursue a simultaneous voter registration. (Id.) The Department's written procedure provides that, if the applicant has left this question blank, the driver's license examiner should ask the applicant about voter registration orally. (Docket No. 31-4, at 2.) If the applicant has indicated, either in the original form or orally, that he wishes to register to vote, the examiner is instructed to provide a computer-generated voter registration application for the applicant to complete. (Id. at 3.) Once the applicant completes the form and hands it in to the examiner, the examiner is to instruct the applicant that he is not yet registered to vote and that his registration will only be complete once his application is received and approved by the registrar of his county election commission. (Id.) Department offices are instructed to hand-deliver voter registration forms to the commission at least once per week, with faster turnaround time required closer to registration deadlines for elections. (Id. at 5, 7.)

         B. Howard's Attempt to Register to Vote

         Howard moved to Tennessee on or around August 14, 2016. (Docket No. 19 ¶ 1.) As a new resident to the state, he was required to complete his driver's license application process in person, rather than purely online or via one of the Department's electronic kiosks. (Id. ¶ 9.) Tennessee's procedures allowed him to begin the process, however, by filling out an electronic application form on the Department website. (Id. ¶ 2.) That form included the question “Would you like to apply to register to vote or update your voter registration?”, which Howard answered by checking the “Yes” box. (Id. ¶ 4.) After Howard completed his electronic application, he was required to print a hard copy to take to one of the Department's driver services centers. (Id. ¶ 9.) Howard's printed form reflected the fact that Howard had expressed a desire to register to vote, but, in accordance with the Department's policy, it did not yet include a fully completed voter registration section. (Docket No. 35 ¶ 8.)

         On October 6, 2016, Howard took his application to the Department's Hart Lane Driver Services Center in Davidson County. (Docket No. 19 ¶ 10.) At the services center, Howard completed the steps necessary to obtain a Tennessee driver's license, and he says that he left believing that he had also registered to vote. (Docket No. 35 ¶ 12.) Howard says that, to the best of his recollection, the driver's license examiner who handled his transaction never gave him the required voter registration form in response to his desire, expressed on his printed driver's license form, to register to vote. The defendants concede, for the purposes of Howard's Motion for Summary Judgment, that he was not given the form at the services center. (Id. ¶ 9.)

         When Howard received his Tennessee driver's license in the mail on October 26, 2016, it was accompanied by a fresh voter registration form. (Docket No. 19 ¶ 12; Docket No. 35 ¶ 13.) This prompted Howard to suspect that he had not, in fact, been registered to vote based on his October 6, 2016 transaction-a fact that he confirmed by consulting an online database of registered voters. (Docket No. 35 ¶ 13.) His realization, however, came too late to register for the upcoming November 2016 election.

         C. Howard's NVRA Suit and Registration to Vote

         The NVRA creates a private right of action for “[a] person who is aggrieved by a violation of this chapter.” 52 U.S.C. § 20510(b)(1). On November 2, 2016, Howard filed suit under that provision, seeking injunctive relief that would require the defendants to alter their voter registration procedures, as well as attorney's fees and costs. (Docket No. 1 ¶ 30.) In his Complaint, Howard alleged the imminent injury of being unable to vote in the upcoming federal election. (Id. ¶ 2.) Howard also initially named as a defendant the Davidson County Election Commission (the “Commission”) for the sole purpose of seeking emergency injunctive relief ordering the Commission to allow Howard to vote in the November 2016 election. (Id. ¶ 28.) To this end, at the same time as the Complaint was filed, Howard filed an Emergency Motion for Temporary Restraining Order. (Docket No. 2.)

         On November 8, 2016, the court executed an Agreed Order, as jointly requested and agreed to by Howard and the Commission, pursuant to which the Commission was required to immediately register Howard to vote in the November 2016 election, and Howard voluntarily dismissed the Commission from the action and agreed not to seek any fees against the Commission. (Docket No. 8.) It is undisputed that, following the issuance of the TRO, the Commission registered Howard to vote and Howard voted in the November 2016 federal election. (Docket No. 19 ¶¶ 13-14.)

         On May 26, 2017, the defendants filed a Motion for Summary Judgment (Docket No. 15) along with a number of supporting attachments, a Memorandum in Support (Docket No. 16), and a Statement of Undisputed Material Facts (Docket No. 17). The defendants argue that Howard's claims against the Department and the State of Tennessee, as well as any claim for nominal damages against Purkey, are barred by sovereign immunity and that Howard's remaining claims are barred either because he lacks standing to challenge the relevant policies or because his claims are moot. On June 16, 2017, Howard filed a Response in opposition (Docket No. 18), along with a Response to the defendants' Statement of Undisputed Material Facts (Docket No. 19), and the Declaration of Benjamin A. Gastel, attorney for Howard, with attached documents in support of Howard's opposition (Docket No. 20). On June 30, 2017, the defendants filed a Reply. (Docket No. 21.)

         The Gastel Declaration includes, as exhibits, a number of documents that Howard offers as evidence that the facts of his case were part of a broader pattern or policy of the Department disregarding its motor voter obligations. (Docket No. 20-4 to -9.) These examples consist of a number of e-mail chains documenting problems related to Tennessee's motor voter system, including: a complaint that another member of the public had attempted to register to vote at the Hart Lane Driver Services Center but had been told that he could not do so because “they had already left with voter registrations and voter registration was now closed” (Docket No. 20-4 at 4); a complaint from a member of the public who received a motor voter form, despite records suggesting that he did not request one (Docket No. 20-5, at 2); a complaint from a member of the public, claiming that he tried to register to vote when he renewed his license, but his information was not transmitted to election authorities (Docket No. 20-6, at 4); a complaint from a member of the public about an experience with uncooperative driver's license examiners in Blount County that ultimately caused her to miss the deadline to register to vote in an upcoming primary election (Docket No. 20-7 at 3); and an e-mail thread apparently describing some breakdown in procedures related to the Department's transmission of voter information to the Dyer County Election Commission (Docket No. 20-9 at 1-3).

         On August 23, 2017, Howard filed a Motion for Summary Judgment (Docket No. 29), a Memorandum in Support (Docket No. 30), and a Statement of Undisputed Material Facts (Docket No. 31). Howard argues that he has established a straightforward failure to comply with the NVRA, entitling him to declaratory and injunctive relief calculated to bring the Department into compliance. On September 12, 2017, the defendants filed a Response in opposition (Docket No. 36), along with a Response to Howard's Statement of Undisputed Material Facts (Docket No. 35). Howard filed a Reply on September 20, 2017 (Docket ...

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