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VOL. 11 | NO. 29 | Saturday, July 21, 2018

The Fuse

The early voting court case and ruling that set the fuse for the August elections in Shelby County

By Bill Dries

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Where and when to hold early voting has been such a low-grade political tug of war in the scheme of low-turnout Memphis elections that it hasn’t caused much of a ripple in the city’s deep political waters.

That is compared to several years of lawsuits contesting election results, one contesting any kind of election night vote count and a 2012 flap over whether city library cards could be used as voter identification.

It’s been more than 23 years since more than half of the eligible voters in any Shelby County election – city, countywide, districts and suburbs – other than a presidential general election in Shelby County showed up to vote. The last time that happened was the Nov. 8, 1994, general elections when 56.8 percent of the county’s voters cast ballots in the second election to feature early voting.

Early voting was so new that separate early-voting totals were handwritten on the paper-only totals distributed election night at Shelby County Election Commission headquarters Downtown. And there was only one location – the Downtown headquarters.

The ballot was an unusual one featuring a race for Tennessee governor and both U.S. Senate seats – the one held by Democratic incumbent Jim Sasser, facing what would be a successful challenge from Republican nominee Bill Frist and the race won by Republican Fred Thompson for the rest of the term of Al Gore, who had become vice president the previous year. There also were special races for the seats of three Memphis City Council members who had won election to the Shelby County Commission in the August 1994 county general elections and taken office Sept. 1.

So in January when Election Commission chairman Robert Meyers said in a one-on-one conversation with elections administrator Linda Phillips that he wanted her to look at adding more early-voting sites, neither thought much of it.

When the election commission voted in June on those five additional sites as well as making Agricenter International the only site for early voting on the first four days of the 14-day voting period in advance of the Aug. 2 Election Day, it quickly became a controversy. But it was more of a get-out-the-vote controversy than legal one.

Between the initial controversy and the court order the early-voting sites and hours changed four times from what they were in the May county primaries.

The resulting lawsuit and Chancellor JoeDae Jenkins' ruling landed squarely on a nuts and bolts mappable matter of the political basics.

“I didn’t imagine that adding sites would be this controversial,” Meyers testified on the first day of the two-day hearing before Jenkins. “There’s not going to be a perfect location. We can only go to places that will let us. We are having to make these decisions all the time.”

Shelby County Democratic Party chairman Corey Strong, meanwhile, with assistance from groups outside the executive committee of the local Democratic Party, was rounding up the makings of a get-out-the-vote machine mobilized around the controversy.

It included sending early voters to New Bethel Missionary Baptist Church in Republican Germantown.

“We’re going to show them that no voting location in Shelby County is safe from Democratic voters,” he said at a meeting of the executive committee.

On the Friday, July 13, opening day of early voting at five locations across the county, New Bethel was the busiest site with 240 voters in the Democratic primary and 295 in the Republican primary. Meanwhile, at Dave Wells Community Center in North Memphis, 75 voters in Republican primaries showed up on opening day compared to 90 in the Democratic primary at the early-voting site that is considered a relief valve for other more popular sites among Democrats.

Strong and former city council member Myron Lowery – the first person to vote early in Shelby County – as well as the Memphis branch NAACP, went to court with a two-pronged complaint against the election commission. The lawsuit alleged that the commission violated the state’s open-meetings law in adding the voting sites and that the schedule had the effect of suppressing the African-American vote in Shelby County.

“They are a public body and they are responsible to the public for their decision-making,” Strong said. “It’s almost like an airplane with a black box. You have to wait until the plane crashes to figure out what’s in the black box. We’ve clearly crashed.”

Shelby County Republican Party chairman Lee Mills said the average turnout in the first four days of early voting in past elections has been “inconsequential.”

“We don’t have enough locations in Republican areas,” he said. “If you look at the map, they are all concentrated in the city of Memphis. Not one time have I heard them say they are worried about voters in the county.”

Strong has been willing to say there is the need to look at early voting in Republican areas of the county.

“I spent a year in Afghanistan,” said Strong, a Navy veteran. “There are people literally fighting and dying for this right in other countries. … I’m excited any time people are willing to exercise their right to vote. It’s happening on both sides. But I see a little bit more of it on my side because people feel like something was taken away from them and the country is going in a direction nobody wants and they want to reel it back in.”

Mills pointed out that the Agricenter is the geographic center of the county and within the city limits. It’s also within the district of Democratic state Rep. Dwayne Thompson, who holds the seat Republicans hope to retake this year after Thompson’s surprise 2016 victory.

The election commission folded, amending the early-voting sites to keep all 26 sites but take out Agricenter as the only early-voting site and instead add Abundant Grace Fellowship Church in Whitehaven – the recommendation of the Democratic election commissioners – and New Bethel in Germantown – the recommendation of the Republican election commissioners. The election commission also added an early-voting site at its Dixon Road offices in Shelby Farms, four miles from Agricenter, to comply with a state law requiring an early-voting site at election commission offices. That would make a total of 27 early-voting sites and three opening at the outset of the period.

“The fix is in. We know what it is,” Strong said immediately after the election commission's decision.

“The guiding principle of the election commission should always be how do we get the most people to vote,” he said. “What is this efficiency thing? Is this a for-profit business. Do they get a bonus for how efficient the locations are?”

The “efficiency thing” was, Phillips argued, a staggered opening of all sites on the premise that early voting has never, in its 24-year history, been about increasing overall voter turnout. It just spreads it out.

Phillips said her decision to open all 21 early-voting sites in the May county primary elections for the entire 14-day voting period proved that.

“The problem was it didn’t change the number of people who voted early,” she said. “I’m talking to a lot of people and nobody’s made up their mind. … That’s very typical. It’s a tremendous strain on the staff to have all of those locations open early. And we are already under a huge crunch because of the (special election for) City Council Super District 9.”

Democratic election commissioner Norma Lester wasn’t at the June meeting when the additional sites were approved, and she was opposed to how it was done.

But Lester also argued that there could be an increase in Republican turnout that had nothing to do with the decision of where and when on early-voting sites.

“I am not going to assume that because the Democrats outvoted the Republicans in the (May) primaries that means there was an increase,” she said. “They are going to come out and they are going to vote. And there is nothing we can do about it except get Democrats to come out and vote. I’m not going to be mad at Republicans because they come out and outvote us.”

The August ballot features a hard-fought four-way Republican primary for governor. The election cycle has a history of higher Republican turnout than in the May primaries, making the turnout just about even between the two parties.

In 2014, 64,803 August voters participated in the Republican primary state and federal races on the ballot compared to 62,072 Democrats. In 2010, there were 77,478 Republican primary voters and 77,536 Democratic primary voters – a difference of 58 voters.

In his first decision, ruling from the bench after a half hour of deliberations, Jenkins put in place a plan that leaves the five new locations and the election commission site – for a total of 27 early-voting sites.

Jenkins added two sites to the three that were opening first – Dave Wells Community Center in North Memphis and Mississippi Boulevard Christian Church in Midtown – and he initially ruled they would be open for the first two days with the other locations following.

That ruling changed before it became a written order when Phillips said in an affidavit that the commission couldn’t have the other sites open on July 16. Jenkins didn’t see anything in the affidavit that ruled out opening all sites the next day, July 17, and amended his order to make that the new opening date for the remainder of the sites.

That was nearly scuttled when election commission attorney John Ryder said the commission had one or two more sites it had found its way clear to open on the first day of the voting period.

“We are not going to horse trade,” Jenkins said as NAACP attorney Andre Wharton said that would “undercut everything.”

“The time has come. The line has been drawn,” Wharton told Jenkins.

Jenkins specifically amended his order to prohibit any departure from the early voting schedule he set.

“You are under my jurisdiction for a year,” Jenkins said. “If you want to change some things, we need to talk about it.”

Beyond the mechanics. Jenkins put on the record a finding that regardless of the intent, the first two plans approved by the election commission had the effect of suppressing the black vote – going so far as to say it violated the Voting Rights Act and the Tennessee Constitution.

“The Court further concludes that the plaintiffs, in both cases, have established a likelihood of success on the merits, that there is irreparable harm to a class of people, African-Americans in fact, in the limitation of access to polling places during early voting and thus a chilling effect and suppression of voter participation,” he said. “Further, while it may be an arduous task on the part of the Commission, it is not so great a harm as to abridge the fundamental right of our citizens and their right to vote. The public's interest is best served by issuing an injunction to maintain the integrity of the ballot, to uphold the statute and the laws promulgated to preserve open meetings.”

And while he didn’t go quite as far on the open meetings law, Jenkins’ ruling said if the plaintiffs want to pursue it they probably could make a case that the election commission violated that law with minutes from the April and May meetings that weren’t available and an agenda for the June meeting that include a general item about the August elections with no specific mention of adding early voting sites.

“The Commission decided to make a major departure from its customary practices for early voting sites dating back to 2012. This departure was without adequate notice to the voting population of this major change in limiting the availability of early voting precincts and, therefore, violates the spirit of the statute,” Jenkins said. “The January, February and March minutes fail to address the massive research project undertaken by the chairman and the administrator in this situation. … Taken altogether, the plaintiff may be able to prove that meetings were conducted in violation of the statute.”

None of the arguments Jenkins was hearing on all sides of the issue were abstract concepts to him.

Jenkins knows the heat of a summer campaign in Memphis and that campaigning during early voting is a proverbial sprint in the heat that belies the other proverb about the pace of campaigns – that they are a marathon and not a sprint.

Two years ago Jenkins was working early-voting sites in the special election for the Chancery Court seat he currently holds in a challenge of appointed Chancellor James Newsom, who was also working hard in the run-up to the August election day.

The result was an election night upset of Newsom by Jenkins in what is the trial court for just about every dispute involving local government.

It is the first court order governing early voting in its nearly 24-year history in Shelby County.

Because of that, it may be the most profound court ruling in its impact on Shelby County politics since the 1991 Memphis federal court ruling by the late Judge Jerome Turner that eliminated the runoff provision of the city charter as well as at-large or citywide seats on the Memphis City Council.

Like Jenkins’ ruling, Turner’s decision came with election day at hand. Unlike Turner’s ruling, Jenkins’ ruling isn’t permanent in that it doesn’t set where early voting takes place hence forth.

Jenkins ruled on the plaintiff’s request for an injunction affecting the immediate issue of early voting.

There is still a trial to come on the larger issues.

“I just try to make the best decision I can with the facts that I have. Some of you will be happy, some of you will not, but that is not to say that that is the end of this story,” he said at the end of his ruling from the bench. “But the thing that we do want to make sure is that we have a good election and we make sure that it goes off without a lot of problems. And that's what I tried to do was just go ahead and push the decision so that I'll not stand in you all's way.”

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