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VOL. 133 | NO. 137 | Wednesday, July 11, 2018

Early Voting Schedule Changes Again as Court Order Signed

By Bill Dries

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UPDATE: The court order governing early voting in advance of the Aug. 2 election day changed again Tuesday, July 10, as Chancellor JoeDae Jenkins amended his Monday order to permit all 27 early voting sites to open Tuesday -- keeping the previous plan to open five of those sites Friday when the 14-day early voting period begins this Friday.

Jenkins amended his earlier order from less than 24 hours prior that would have opened all 27 early voting sites on Monday, July 16.

The change was prompted by an affidavit from elections administrator Linda Phillips saying there was no way to open all of the sites Monday but possibly Tuesday.

Shelby County Democratic Party Chairman Corey Strong, left, and Election Commission attorney John Ryder talk on Monday, July 9, as they await a ruling from Chancellor JoeDae Jenkins. (Daily News/Bill Dries)

The amendment was almost scuttled when the Election Commission then offered to open other sites on Friday to go with the five designated early voting sites on the first day.

Attorneys for plaintiffs in the lawsuit over two previous early voting plans questioned why the election commission could open some sites on Friday but said a Monday opening would not work.

They also questioned whether opening more sites would undo the racial and demographic balance Jenkins included in his order by adding two sites in predominantly black and Democratic areas of Midtown and North Memphis -- Mississippi Boulevard Christian Church and Dave Wells Community Center -- to go with a site in Whitehaven, one at Shelby Farms and another in Germantown.

Jenkins made it clear that he was barring the opening of any additional sites on opening day and said he wanted to avoid any further "horse trading" on the matter.

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The day after Chancery Court Chancellor JoeDae Jenkins ordered a rearrangement of early voting scheduled to begin Friday, the attorney for the Shelby County Election Commission was contemplating an appeal of the ruling.

Attorney John Ryder told Jenkins Tuesday, July 10, that the commission is “still trying to determine if we can comply with the ruling.”

That determination was expected to be made later Tuesday with an afternoon hearing scheduled before Jenkins.

Jenkins, in a Monday night ruling, ordered the commission to add two more early-voting sites to the three scheduled to open Friday. He also ordered the remaining 22 early-voting sites to open Monday, July 16, instead of the election commission’s plan to open all 27 early-voting sites July 18.

Jenkins has not yet issued a formal order of his ruling. Ryder said he is considering an interlocutory appeal and possibly a stay of Jenkins’ ruling pending an appeal.

“This is only an order on a request for a preliminary injunction,” Ryder said after the Tuesday morning hearing. “The underlying pleadings still have to be addressed in a full-blown trial.”

“The stay would effectively nullify what was done yesterday,” Ryder said of Jenkins’ Monday ruling.

In the combined Chancery Court lawsuits brought by Corey Strong, chairman of the Shelby County Democratic Party, and the Memphis branch NAACP, Jenkins ruled that the three early-voting sites that were to open Friday meant that “African-Americans would have fewer voting opportunities.” The three sites are in Whitehaven, Germantown and at Shelby Farms.

Jenkins, ruling from the bench after deliberating a half-hour Monday, said the proof “demonstrates that African-Americans would have fewer voting opportunities than whites under this new early voting plan.

“The plaintiffs in both cases have established a likelihood of success on the merits that there is irreparable harm … and thus a chilling effect and suppression of voter participation,” he said. “While it may be an arduous task on the part of the commission, it is not so great a harm as to abridge a fundamental right of our citizens – the right to vote.”

He ordered the election commission to make Mississippi Boulevard Christian Church in Midtown and either the Ed Rice Community Center in Frayser or Dave Wells Community Center in North Memphis – which are already early-voting sites – part of the group that will open first on Friday.

Alexander Wharton, attorney for the Memphis branch NAACP, said after the hearing that an appeals court could take several paths, including a stay of Jenkins’ order.

“They probably won’t have a record of what happened before your honor in order to decide on appeal whether the ruling the court made as well as the ruling on the interlocutory appeal was actually proper,” he said. “Stranger things have happened. I don’t know if we’ll have a transcript done in enough time in order for the court of appeals to weigh in.”

Election commission chairman Robert Meyers said, “Obviously we are going to comply with the chancellor’s orders. Our intent is as its always been. And that is to try to serve the voters of Shelby County as best we can and provide opportunities for all of them to vote some place that is reasonably convenient, safe and efficient.”

Meyers has said he began talking about adding additional early-voting sites in January in a one-on-one conversation with elections administrator Linda Phillips. The result was three new sites in predominantly white areas and two in areas that are predominantly African-American.

That was the original plan that surfaced in June to vocal protests from Democrats.

“No notice was given that this plan was in the works or going to be adopted although it was a major departure from what had been previously done,” Jenkins noted from the bench.

Jenkins stopped short of ruling there was a violation of the state open-meetings law when the election commission approved the initial plan and made Agricenter the only site open for the first four days of the 14-day voting period.

That plan was amended days later with the election commission keeping the five new sites and moving to the three other sites open for the first four days of the voting period.

“It is not clear the reason this plan was instituted in the first place,” Jenkins said of the original plan. He faulted the election commission for not including specific information about the plan to add new voting sites on its agenda and not having the minutes of its meetings before the meeting in June when the decision was made.

“In this case the election commission decided to make a major departure from its customary practice for early voting sites, therefore violating the spirit of the statute,” Jenkins said referring to the open-meetings statute. “The commission failed to post the minutes of its meetings for April and May which may have assisted this court. ... Taken altogether, the plaintiffs may be able to prove that meetings were conducted in violation of the statute.”

Meyers and deputy elections administrator Joe Young were questioned about preparation for the August county general and state and federal primary ballot and why a different early-voting plan than the May county primaries was implemented.

They also were questioned about how to change early-voting locations and hours and what it would take.

Ryder argued a third change in early voting could create chaos.

“The last thing this county needs is a flawed election,” Ryder said in his closing statement at the end of the seven-hour hearing. “When you get out of sync bad things happen.”

Jenkins didn’t discount that completely.

“Personnel issues may present a bit of a challenge, but it is not impossible,” Jenkins said.

Wharton said the finding of irreparable harm in the departure from the early-voting period in past elections was the central issue.

“Not just the name plaintiff in our particular case, but also all African-American citizens in the county of Shelby would suffer irreparable harm if not given full access and a reasonable chance to exercise and early vote,” he said. “That’s what it came down to.”

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