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League of Women Voters v. TRE Hargett

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

September 12, 2019

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.



         The plaintiffs have filed a Motion for Preliminary Injunction (Docket No. 54), to which the defendants have filed a Response (Docket No. 59). For the reasons set out herein, that motion will be granted.


         A. Voting in Tennessee

         A more detailed discussion of the procedural history of this case and the legal context of the underlying enactment can be found in the court's Memorandum of September 9, 2019. (Docket No. 57.) In short, “[o]nly qualified voters who are registered . . . may vote at elections in Tennessee, ” Tenn. Code Ann. § 2-1-105, and the only way to be registered is if one “applies to register.” Tenn. Code Ann. § 2-2-104(1). A voter registration application can be completed in person at various government offices, online, or by mail. See Tenn. Code Ann. §§ 2-2-108(a)(1), 2-2-111(a), 2-2-112, 2-2-115(a), 2-2-201, 2-2-202. 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.

         On April 29, 2019, the Tennessee General Assembly passed a new law governing, among other things not at issue in this case, “voter registration drives” and “public communication[s] regarding voter registration status.” 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. On May 9, 2019, most of the current plaintiffs-along with one organization that is no longer associated with the case-filed a Complaint in this court challenging the constitutionality of several portions of the Act under 42 U.S.C. § 1983. (Docket No. 1.) On June 21, 2019, the plaintiffs filed an Amended Complaint that expanded on the plaintiffs' allegations and included all of the parties currently in the case. (Docket No. 37.) The defendants then moved the court to dismiss the plaintiffs' claims based on either a lack of jurisdiction or a failure by the plaintiffs to articulate plausible challenges to the Act's constitutionality. (Docket No. 39.) The court denied that motion, concluding that, for the purposes of the Motion to Dismiss, (1) the plaintiffs had standing to bring their claims, (2) the plaintiffs' claims were ripe, and (3) the plaintiffs had articulated a plausible basis for their claims. (Docket No. 57.) The plaintiffs seek a preliminary injunction enjoining some of the Act's provisions. The defendants have opposed the motion.

         B. Relevant Provisions of the Act[1]

         1. Pre-Drive Registration and Training Requirements

         The Act requires prior registration, with the state's Coordinator of Elections, by private organizations and individuals planning a voter registration drive in which the party will “attempt[] to collect voter registration applications of one hundred (100) or more people.” Tenn. Code Ann. § 2-2-142(a).[2] “Voter registration drive” is not defined. As part of that pre-drive registration, the registrant must complete government-provided training and ensure that all of its voter registration workers also complete that training. Tenn. Code Ann. § 2-2-142(a)(1)(C), (E). The Coordinator of Elections is forbidden from charging a fee for the government-administered training and is required to “offer the training online.” Tenn. Code Ann. § 2-2-142(e). The pre- registration must be accompanied by a “sworn statement stating that the person or organization shall obey all state laws and procedures regarding the registration of voters.” Tenn. Code Ann. § 2-2-142(a)(1)(D).

         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 has been “designated” by the county election commission as the county designee for the purposes of operating certain county-supervised voter registration activities. Tenn. Code Ann. § 2-2-142(a).

         Violation of any of these requirements, if done “intentionally or knowingly, ” is a Class A misdemeanor, and “each violation constitutes a separate offense.” Tenn. Code Ann. § 2-2-142(f).

         2. Mandatory 10-Day Turn-In and Civil Penalties for Incomplete Forms

         The Act requires any person or organization that performs a voter registration drive for which registration was required to “deliver or mail completed voter registration forms within ten (10) days of the date of the voter registration drive; provided[] that if the date of the voter registration drive is within ten (10) days of the voter registration deadline, the completed forms must be delivered or mailed no later than the voter registration deadline.” Tenn. Code Ann. § 2-2-142(a)(2). The only exception within the text of the Act is that “[a] person or organization who collects an application that only contains a name or initial is not required to file the application with the election commission.” Tenn. Code Ann. § 2-2-143(b). A knowing or intentional violation of this provision is a Class A misdemeanor, with “each violation constitut[ing] a separate offense.” Tenn. Code Ann. § 2-2-142(f).

         The plaintiffs do not dispute that they should turn in any voter registration forms they receive that represent a good-faith effort to register to vote. To the contrary, as they note in their Amended Complaint, it is arguably already their duty to do so under Tenn. Code Ann. § 2-19-103, which makes it a crime to knowingly interfere in a person's rights under the state's election laws. (Docket No. 37 ¶ 186.) The plaintiffs take issue, however, with the inflexibility of the 10-day rule and with the turn-in requirement's relationship to another of the Act's key provisions- its system of civil penalties related to the submission of “incomplete” voter registration applications. Pursuant to Tenn. Code Ann. § 2-2-143(a), “any person or organization” that “conducts voter registration drives under” the registration scheme is subject to a civil penalty if the person or organization, “within a calendar year, files one hundred (100) or more incomplete voter registration applications.” The Act defines “incomplete voter registration application” as “any application that lacks the applicant's name, residential address, date of birth, declaration of eligibility, or signature.” Tenn. Code Ann. § 2-2-143(b). This provision does not include a requirement that the violation be knowing or intentional.

         County election commissions are required to “file notice with the state election commission, along with a copy of each voter registration application deemed to be incomplete and identifying information about the person or organization that filed the incomplete applications.” Tenn. Code Ann. § 2-2-143(c)(2). The state election commission then “shall make a finding on the number of incomplete forms filed” and “may impose civil penalties for Class 1 and Class 2 offenses.” Tenn. Code Ann. § 2-2-143(c)(3). “‘Class 1 offense' means the filing of one hundred (100) to five hundred (500) incomplete voter registration applications, ” and such an offense is “punishable by a civil penalty of one hundred fifty dollars ($150), up to a maximum of two thousand dollars ($2, 000), in each county where the violation occurred.” Tenn. Code Ann. § 2-2-143(c)(4)(A). “‘Class 2 offense' means the filing of more than five hundred (500) incomplete voter registration applications, ” and such an offense is “punishable by a civil penalty of not more than ten thousand dollars ($10, 000) in each county where the violation occurred.” Tenn. Code Ann. § 2-2-143(c)(4)(B).

         3. Consent Requirement for Retention of Voter Information

         The Act prohibits anyone operating a voter registration drive from “copying, photographing, or in any way retaining the voter information and data collected on the voter registration application, unless the applicant consents.” Tenn. Code Ann. § 2-2-142(b). The Act does not specify whether the consent must be in writing. A knowing or intentional violation is a Class A misdemeanor, with “each violation constitut[ing] a separate offense.” Tenn. Code Ann. § 2-2-142(f).

         4. Mandatory Disclaimers for Communications “Regarding Voter Registration Status”

         Pursuant to Tenn. Code Ann. § 2-2-145(a)(1), any “public communication regarding voter registration status made by a political committee or organization must display a disclaimer that such communication is not made in conjunction with or authorized by the secretary of state.” Id. “The disclaimer must be clear and conspicuous and prominently placed. A disclaimer is not clear and conspicuous if it is difficult to read or hear, or if its placement can be easily overlooked.” Tenn. Code Ann. § 2-2-145(d). If a “person or organization . . . establishes a website for voter registration purposes, ” it must display such a disclaimer and, if the site “captures or collects the voter's information or data, ” it must include an additional notice “disclos[ing] on the website the person's or organization's name and the purpose for which the voter information is captured or collected.” Tenn. Code Ann. § 2-2-145(b)(1)-(2). The same is true for a website created to allow users to look up registration information. Tenn. Code Ann. § 2-2-145(c)(1)-(2). “Any person who intentionally and knowingly violates” these provisions “commits a Class A misdemeanor and each violation constitutes a separate offense.” Tenn. Code Ann. § 2-2-145(e).

         C. This Litigation

         1. The Plaintiffs

         The plaintiffs are all organizations involved in voter registration activities in Tennessee. Although they employ different strategies and work with different populations, all have expressed fear that it will be difficult or even impossible to continue their activities while complying with the Act.

         a. League of Women Voters of Tennessee.

         The League of Women Voters of Tennessee and the League of Women Voters of Tennessee Education Fund (collectively, the “League”) are nonprofit organizations that “seek[] to empower voters and promote civic engagement through informed and active participation in government.” (Docket No. 54-2 ¶¶ 6, 8.) The plaintiffs have produced a Declaration by Marian Ott, the League's current president and member for over 35 years. (Id. ¶¶ 5, 7.) The League has operated in Tennessee since 1920. Its annual budget for the last fiscal year was about $36, 000, although local chapters of the League have also had their own budgets, the largest of which has recently been about $35, 000 a year. (Id. ¶¶ 12, 14-15.) In 2018, the League's chapters conducted approximately 122 voter registration events, for which they relied on about 277 volunteers, resulting in the submission of nearly 3, 000 voter registration applications. The League's work has continued in 2019 and has included voter registration events at utilities offices, YMCA locations, universities, and naturalization ceremonies. (Id. ¶¶ 16-17, 20.) The League's voter registration activities are regularly funded by grants. (Id. ¶ 23.)

         According to Ott, bringing the League's activities into compliance with the Act will require “significant staff, volunteer, and leadership resources, ” of which she provides several examples (Id. ¶¶ 27, 50, 52, 55.) Ott also expresses concern that the Act's prior registration requirement will be difficult to comply with and will prevent the League's chapters from holding impromptu voter registration events. (Id. ¶ 29.) Ott suggests, moreover, that the requirement that volunteers undergo prior government training will hamper the organization's ability to draw on its volunteer base, many of whom do not make the final decision to volunteer until the day of an event. (Id. ¶¶ 33-34.)

         As Ott explains, participation in voter registration drives is central to the League's mission and its recruitment of new members. Ott believes, however, that a risk of criminal prosecution will have a significant chilling effect on potential volunteers' willingness to participate in drives. (Id. ¶ 40.) According to Ott, it is also very likely that the League's voter registration drives will produce some incomplete applications, regardless of the League's efforts to make sure that all applications are completed correctly. The Act's system of civil penalties, therefore, threatens to create liabilities for the League. (Id. ¶¶ 46-47. 57.) Ultimately, according to Ott, the League has been forced to consider placing a moratorium on its voter registration activities in response to the Act. Even if it does not go as far as a full moratorium, the League will, according to Ott, be “likely to significantly scale back the volume of voter registration drives” it performs. (Id. ¶¶ 58-59.)

         Ott explains that the League also routinely engages in communications with the public about voter registration that would likely be subject to the Act's disclaimer requirements. (Id. ¶ 63.) The League will have to expend resources revising its materials to include the required disclaimers. (Id. ¶ 65.) In particular, the League was planning to implement a 2020 text messaging campaign to communicate with potential voters about voter registration. That campaign, however, would be made infeasible or, at the very least, more expensive by the disclaimer requirement. Accordingly, if the Act is not enjoined, the League will abandon its text-messaging plans. (Id. ¶ 70.) The disclaimer requirements also pose technical and practical challenges to the operation of the League's voter registration and education website, (Id. ¶ 71.) Moreover, Ott explains, even if it is somehow able to comply with the disclaimer requirements for all of its potentially covered communications, the League is concerned that the disclaimers will reduce the effectiveness of its communications by making the League's efforts seem unauthorized and illegitimate, despite its century of service as a reputable organization assisting in voter registration. (Id. ¶ 73)

         Finally, Ott explains, the League, prior to the Act, was planning to retain information obtained in future voter registration drives in order to conduct follow-up communications to provide election information and encourage voting. Because of the Act and, in particular, the difficulty of both complying with and documenting compliance with its consent requirement for the retention of voter information, the League has placed this plan on “indefinite hold.” (Id. ¶¶ 66-67.)

         b. Memphis Central Labor Council.

         The Memphis Central Labor Council (“MCLC”) is a Memphis-based labor council of the American Federation of Labor and Congress of Industrial Organizations, commonly referred to as the “AFL-CIO.” It acts as the umbrella organization for 44 west Tennessee-based affiliate unions, including the local affiliate of the International Brotherhood of Electrical Workers and the local affiliate of the American Federation of State, County and Municipal Employees. All in all, MCLC and its affiliated unions have about 16, 000 union members. (Docket No. 54-5 ¶ 2.) The plaintiffs have provided a Declaration by MCLC Executive Secretary Jeffrey Lichtenstein. (Id.) According to Lichtenstein, MCLC engages in extensive canvassing, voter turnout, and voter registration activities, targeted, in particular, at union members and their families, including members of MCLC's unions and west Tennessee members of other AFL-CIO-affiliated unions. According to data available to Lichtenstein, there are approximately 40, 000 union members or union household members in west Tennessee who are eligible to vote but unregistered, about 10, 000 of whom are members of MCLC unions. (Id. ¶¶ 3, 5.) MCLC uses paid field organizers for its voter registration and other canvassing. (Id. ¶ 6.) It retains information that it collects while canvassing in order to build and update union membership lists that it will eventually use to communicate with union members about voting and related issues. (Id. ¶ 11.)

         Lichtenstein expresses the same concerns as Ott regarding the Act's effect on MCLC's voter registration and communication activities. (Id. ¶¶ 12-22.) According to Lichtenstein, the compliance burdens of the Act, the chilling effect on MCLC's ability to hire organizers, and the risk of civil fines and misdemeanor charges may render MCLC ultimately “unable to continue conducting its door-to-door canvassing program in the manner it has used in the past.” (Id. ¶¶ 14, 20, 22.)

         c. American Muslim Advisory Council.

         The American Muslim Advisory Council (“AMAC”) is a Nashville-based 501(c)(3) organization that “seeks to empower Muslims across Tennessee through civic engagement and community building to protect all Tennesseans from prejudice and targeted violence.” (Docket No. 54-3 ¶ 3.) The plaintiffs have provided a Declaration by Sabina Mohyuddin, AMAC's Middle Tennessee Program Manager. (Id. ¶ 2.) According to Mohyuddin, “AMAC reached over 2, 000 Muslim Tennesseans through voter registration drives, get-out-the-vote events, meet-the-candidate forums, and outreach” in 2018. (Id. ¶ 5.) Those efforts included voter registration events at mosques in Nashville, Antioch, Murfreesboro, Memphis, and Knoxville. (Id.) AMAC receives grants for its civic engagement work, which it uses to pay voter registration workers. (Id. ¶ 6.) Its total budget for 2018 was about $120, 000, with about $1, 000 allocated to voter registration activities. (Id. ¶ 8.) AMAC shares the other plaintiffs' concerns about the Act's provisions regulating voter registration activities and communications. (Id. ¶¶ 10-20.) According to Mohyuddin, the Act will force AMAC to scale back its voter registration activities in order to lessen its risk of violating the civil penalties provisions. (Id. ¶ 10.)

         d. Mid-South Peace and Justice Center.

         The Mid-South Peace and Justice Center (“MSPJC”) is a “multi-issue, multi-race organization whose mission is to engage, organize, and mobilize communities to realize social justice through nonviolent action.” (Docket No. 54-4 ¶ 8.) The plaintiffs have provided a Declaration by MSPJC Organizing Coordinator Paul Garner. (Id. ¶ 7.) According to Garner, voter registration activities are an important part of MSPJC's mission, and it relies on both grants and volunteers to support its voter registration activities. (Id. ¶¶ 14, 17.) Garner states that MSPJC “aims to collect as many voter registration applications as possible and endeavors to increase the number of eligible voters registered in Tennessee, namely in the communities with [which] it works, to make sure that their voices and perspectives are represented in the political process.” (Id. ¶ 20.) MSPJC has an annual budget of about $235, 000, much of which goes to salaries. It is, therefore, particularly concerned about the possibility of civil fines. Garner states that “even one $2, 000 fine would likely lead [MSPJC] to suspend all voter registration activities.” (Id. ¶ 17.) MSPJC shares the other plaintiffs' concerns regarding the Act's regulation of voter registration drives, communications, and retention of information, and Garner expresses similar fears regarding the Act's effects on MSPJC's ongoing activities. (Id. ¶¶ 21-50.)

         e. HeadCount.

         HeadCount is a New York City-based 501(c)(3) organization that works with musicians and other media figures to promote participation in democracy. As part of its efforts, HeadCount operates voter registration drives at concerts and music festivals nationwide. (Docket No. 54-6 ¶ 4.) The plaintiffs have provided a Declaration by Tappan Vickery, who started working with the group as a volunteer in 2004 and now serves as its Director of Voter Engagement. (Id. ¶¶ 1-3.) Since 2004, HeadCount has assisted in the submission of over 600, 000 voter registration applications through more than 6, 000 in-person field events. In order to execute these large-scale efforts, HeadCount has cultivated a network of about 20, 000 volunteers (Id. ΒΆ 6.) It receives grant money, direct donations, and sponsorships to fund its voter ...

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