League of Women Voters v. Hargett

400 F.Supp.3d 706

LEAGUE OF WOMEN VOTERS, League of Women Voters Tennessee Education Fund, American Muslim Advisory Council, Mid-South Peace & Justice Center, Rock the Vote, Memphis Central Labor Council, and HeadCount, 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.

Case No. 3:19-cv-00385

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

Signed September 12, 2019

Amanda S. Floyd, Thomas H. Castelli, ACLU (Nashville Office), C. Dewey Branstetter, Jr., Hunter C. Branstetter, William L. Harbison, Sherrard Roe Voight & Harbison, PLC, Nashville, TN, Dale E. Ho, American Civil Liberties Union Foundation, New York, NY, Danielle Lang, Molly Danahy, Urja Mittal, Campaign Legal Center, Davin Rosborough, Sarah Brannon, Sophia Lin Lakin, Theresa J. Lee, American Civil Liberties Union Foundation, Jon Sherman, Fair Elections Legal Network, Michelle Kanter Cohen, Fair Elections Center, Washington, DC, for Plaintiffs.

Alexander Stuart Rieger, Kelley L. Groover, Tennessee Attorney General's Office, Nashville, TN,

ALETA A. TRAUGER, United States District Judge

MEMORANDUM

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.

I. BACKGROUND AND PROCEDURAL HISTORY

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....