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Shelby County Advocates for Valid Elections v. Hargett

United States District Court, W.D. Tennessee, Western Division

September 13, 2019

SHELBY COUNTY ADVOCATES FOR VALID ELECTIONS, MICHAEL KERNELL, JOE TOWNS, JR., ANN SCOTT, and BRITNEY THORNTON, Plaintiffs,
v.
TRE HARGETT, in his official capacity as TENNESSEE SECRETARY OF STATE, et al., Defendants.

          ORDER GRANTING MOTIONS TO DISMISS WITHOUT PREJUDICE

          THOMAS L. PARKER UNITED STATES DISTRICT JUDGE.

         Plaintiffs seek an order requiring Defendants to implement procedures Plaintiffs believe will make elections more secure and trustworthy. (ECF No. 104.) Now Defendants move to dismiss the complaint. (ECF Nos. 115 & 116.) The Court held a hearing on the Motions and heard arguments from the parties. (See Minute Entry, ECF No. 137.) The Motions are now ripe. For the reasons below, the Motions to Dismiss are GRANTED.

         BACKGROUND

         I. Prior Proceedings

         Plaintiffs sued here on Friday, October 12, 2018, five days before early voting began in Shelby County, Tennessee for the November 2018 elections. (ECF No. 1.) The Complaint brings “a civil rights action for declaratory and injunctive relief” against the State of Tennessee, Shelby County, and various individuals responsible for conducting elections. (ECF No. 104.) Shortly after suing, Plaintiffs moved for a temporary restraining order (“TRO”) and mandamus order requesting an order requiring the election officials take various affirmative measures related to the voting system before early voting began. (ECF No. 23.) The Court held a hearing on that request and heard from representatives for all parties. The Court determined that Plaintiffs failed to meet their burden of proof and issued both an oral order denying the request for a TRO and entered a written oral elaborating on its reasons for denying the Motion. (ECF No. 43.)

         The case then continued. Plaintiffs filed two amended complaints. (ECF Nos. 63 & 104.) The Second Amended Complaint is now the operative filing. The Court will refer to the Second Amended Complaint simply as the Complaint.

         II. General Allegations

         The Complaint names various state and county officials charged with implementing election processes, as well as the Tennessee Election Commission (“Tennessee”) and the Shelby County Election Commission (“Shelby County”).[1] (See ECF No. 104.) Plaintiffs allege that both the State and County Defendants have created and maintained a non-functioning voting system that deprives Individual Plaintiffs and members of Shelby Advocates for Valid Elections (“SAVE”) the fundamental right to vote and the equal protection of that right. (ECF No. 104 at PageID 1197.) Plaintiffs allege many deficiencies within the Shelby County election process that interfere with their right to vote. But their main issue is that Shelby County's use of AccuVote-TSx R7 direct-recording electronic voting machines (“AccuVote DRE”) and Diebold GEMS version 1.18.24.101 voting software allegedly does not meet Tennessee statutory requirements and thus creates an inherently insecure and inaccurate voting system. (See id. at PageID 1198.)

         In effect, Plaintiffs allege that Shelby County's voting system is not secure because it does not create a voter verified paper audit trail (“VVPAT”). (ECF No. 104 at PageID 1198.) The AccuVote DRE does not record each voter's selection on a paper ballot. Instead, each voter verifies their choices on the screen (much like using a banking ATM machine) before submitting their ballot electronically. And the machine stores their votes on removable memory cards and on the voting machine's internal flash memory. (Id. at PageID 1223-25.)

         After the polls close on election day, poll workers insert the memory cards from each DRE machine into one machine to tabulate the votes from that precinct. (ECF No. 104 at PageID 1223.) Shelby County's practice is to bring these memory cards to centralized Zone Turn-in Sites or directly to the election headquarters for tabulation. (Id. at PageID 1224 & 1226.) Election workers then upload these results to the Diebold GEMS server where the software combines election-day data with mail-in absentee ballots to tabulate the election results. (Id. at PageID 1226.) Another concern Plaintiffs have about the AccuVote DRE is that it can connect to the internet and Shelby County election officials sometimes use this capability to transfer election results from satellite turn-in locations to the election headquarters. (Id. at PageID 1260-61.)

         Plaintiffs claim these alleged deficiencies in the voting process purportedly uniquely affect Shelby County voters because of the County's size and racial makeup. (ECF No. 104 at PageID 1198-99.) Plaintiffs allege that out of the 95 counties in Tennessee, Shelby County has the largest African American population. (Id. at PageID 1255.) And no other county in Tennessee uses the same DRE voting machine that Shelby County uses. (Id. at PageID 1256.) That said, Plaintiffs acknowledge that only 14 of the 95 counties in Tennessee use a VVPAT capable voting system. (Id. at PageID 1258.) Chattanooga is the only major city in Tennessee that is in a county that uses a VVPAT system. (Id. at PageID 1258-59.)

         But counties using VVPAT voting systems must perform audits of the ballots cast in presidential and gubernatorial elections. (Id. at PageID 1260); see also Tenn. Code Ann. § 2-20-103. Plaintiffs argue that Shelby County's voting system is not subject to a meaningful recount or audit because the only record of the votes kept is on the AccuVote DRE's internal memory cards. These cards, they assert, can be hacked or manipulated. (Id. at PageID 1231.) Plaintiffs point to systems elsewhere that include a VVPAT so the election officials verify the results. These supposed weaknesses undergird Plaintiffs' theory that Shelby County's election procedures were “designed and implemented with the intent of disenfranchising Shelby County voters, the majority of whom are African American, including Plaintiffs Joe Town, Jr. and Britney Thornton.” (Id. at PageID 1232.)

         Adding to their claims, Plaintiffs allege that Defendants do not properly train many of the election officials and poll workers to use the voting machines and software. This, they claim, raises the likelihood of misconduct. (ECF No. 104 at PageID 1227.) The lack of training and oversight has reportedly led to the cavalier handling of memory cards from the AccuVote DRE machines. (Id. at PageID 1238 & 1240.) And the GEMS software has at times exhibited defective connections with the DRE memory cards. (Id. at PageID 1245.) Still another problem with the equipment is that sometimes a voter's selection of one candidate registers on the screen as a vote for that candidate's opponent. (Id. at PageID 1247- 48.) Plaintiffs thus allege that Shelby County's antiquated voting equipment paired with the ill-prepared election workers leaves Shelby County's election system vulnerable to undetectable hacking and malicious manipulation. (Id. at PageID 1228.)

         All in all, Plaintiff's claim that Shelby County's current voting system creates a fundamentally unfair voting system in violation of the Due Process Clause of the Fourteenth Amendment, and that it has impaired Shelby County voters' ability to participate in state elections on an equal basis with other qualified voters in Tennessee. (ECF No. 104 at PageID 1264-65.) This has caused vote dilution which violates the Equal Protection Clause of the Fourteenth Amendment. (Id.)

         III. Specific Allegations

         A. Due process claim

         Plaintiffs' due process claim hinges on their argument that the right to participate in a “trustworthy and verifiable election process that safely, accurately, and reliably records and counts all votes cast” is part in parcel with the fundamental right to vote. (ECF No. 104 at PageID 1275.) The voting systems used by Shelby County allegedly suffers from non-uniform standards and improperly trained personnel causing an unfair system and the denial of the right to vote. (Id.) Plaintiffs argue that such an unsecure voting system creates an unreasonable risk of votes being miscounted or that registered voters will be erroneously denied the right to vote. (Id. at PageID 1277.) Besides these risks, and to shoehorn its claim into a category recognized by Courts as a valid one, SAVE asserts that it must divert its resources, time, and personnel from other projects to monitor Shelby County's continued use of the AccuVote DRE voting machines. (Id.) Above all, SAVE argues it must keep taking legal action until the County uses hand-marked paper ballots. (Id.)

         Plaintiff Kernell also claims that when he ran for State Representative for District 93 in Shelby County in August 2012, election workers distributed around 720 incorrect ballots to voters. (ECF No. 104 at PageID 1268.) Poll workers gave ballots to some voters residing outside District 93 which allowed them to vote for or against Kernell. (Id.) He claims that he had to waste time and money campaigning for a race when Defendants did not adhere to district lines. (Id. at PageID 1268-69.) Kernell argues that he will have to expend additional sums of money and spend extra time reaching voters outside his district if he runs for office again. (Id. at PageID 1270.) And Plaintiff Kernell predicts that such issues with Shelby County's voting system will lead potential candidates to decline running for office. (Id.) Plaintiffs Towns, Jr. and Thornton also believe that they will have to spend additional sums of money and time to reach voters outside of their districts to prevent the same issues from arising that burdened Kernell's candidacy seven years ago. (Id.)

         B. Equal protection claim

         Plaintiffs also allege that the continued use of the DRE voting machines creates an unequal voting system within Tennessee in violation of the Equal Protection Clause of the Fourteenth Amendment. (ECF No. 104 at PageID 1281.) This voting system allegedly dilutes the voting power within Shelby County and violates the right to have one's vote counted equally. (Id.) And Plaintiffs claim this treatment has a disproportionate impact on Tennessee's African American population because Shelby County has the largest population of African American voters in the State. (Id. at PageID 1282.) As a result, the voting system implemented by Defendants brings about different treatment for Shelby County citizens because of where they reside.

         IV. Requested Relief

         To remedy these issues, Plaintiffs seek an order declaring that Shelby County's voting system violates Plaintiffs' right to equal protection under the Fourteenth Amendment and their fundamental right to vote under the Due Process Clause of the Fourteenth Amendment. (ECF No. 104 at PageID 1287.) Plaintiffs demand that this Court order Defendants to replace the Shelby County voting systems with paper ballots and an optical scan system. (Id. at PageID 1251.) They also request that the Court order an examination and an internal audit of current software, vote tabulator, and voting machines. (Id.) They also seek an order enjoining Defendants from holding future elections without adopting and enforcing rules and regulations that ensure the safety and accuracy of the voting process. (Id. at PageID 1288.) That said, both the State Defendants and the County Defendants moved to dismiss the complaint arguing, among other things, that Plaintiffs lack standing to bring this complaint. (ECF Nos. 115 & 116.) The County Defendants have joined in the State Defendants' Motion and have also made arguments of their own. (See ECF NO. 116.) The Court addresses these Motions together where the arguments are the same.

         LEGAL ...


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