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JW Tennessee Brief

JW Tennessee Brief

Page 1: JW Tennessee Brief


Number of Pages:15

Date Created:June 8, 2012

Date Uploaded to the Library:February 20, 2014

Tags:rolls, Registration, Memorandum, Voter Fraud, voter, Tennessee, senator, colorado, acorn, Plaintiffs, Davis, motion, Congress, section, plaintiff, State, states, court, EPA, ICE, CIA

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Proposed Plaintiff,  Judge Sharp  Magistrate Judge Knowles  
TRE HARGETT, Tennessee Secretary State; and MARK GOINS, Tennessee  
Coordinator Elections, each their  
official capacities only.  



Judicial Watch, Inc. and the Allied Educational Foundation hereby respectfully submit 
this amici curiae brief support the Defendants and opposition Plaintiff Lincoln Davis 
and Proposed Plaintiff Tennessee Democratic Party (Plaintiffs) Motion for Preliminary 
Injunction, filed May 25, 2012.1 This brief intended address issues federal election 
law raised Plaintiffs, which amici have knowledge and expertise. 
This brief filed concurrently with Motion for Leave Court File Amicus Curiae Brief. The grounds for the request for leave file this brief are contained the motion. party counsel for party the above-captioned case authored this brief whole part, and person other than the amici made monetary contribution intended fund the preparation and submission this brief. 

The National Voter Registration Act 1993 (NVRA), U.S.C.  1973gg seq., reflects careful compromise law designed both increase lawful voter registration and increase the integrity elections ensuring that voter rolls are accurate and well maintained. Similarly, the Help America Vote Act 2002 (HAVA), U.S.C.  15301 seq., was another carefully brokered Congressional balancing act designed both increase lawful access the ballot box and prevent fraud increasing election integrity. make sure that states could remove names from voter rolls without constant fear making mistake and being sued, HAVA included law requiring states make provisional ballots available. This provisional ballot law ensures that anyone who claims eligible vote precinct can submit their vote when they show the polls even their name not the registered voter list. Congress designed this statutory provision ensure states could conduct reasonable voter list maintenance (under both their HAVA and NVRA obligations) without fear disenfranchisement lawsuits they make one mistake out millions registrations. Provisional voting the remedy Congress intended for remedying voter list mistakes. Plaintiffs, however, appear prefer that States stop trying undertake list maintenance efforts altogether. 
Plaintiffs attempt prevent Tennessee from maintaining accurate voter registration rolls has the potential worsen already significant nationwide problem. Nearly years after passage the NVRA and years after HAVA, the voter rolls many states remain rife with errors and are often highly inaccurate. According research conducted the Center for the States the non-partisan Pew Charitable Trusts (Pew), inaccurate voter registrations are rampant. Pews independent research, published February 2012, indicates that approximately million active voter registrations throughout the United States  one out every eight registrations  are either longer valid are significantly inaccurate.2 Pew also found that more than 1.8 million deceased individuals are listed active voters registration lists nationwide, and that approximately 2.75 million people have active registrations more than one state. Id. 
Part the reason NVRA and HAVA have failed achieve accurate and reliable voter registration rolls the existence lawsuits like the present one. stake this case less than the issue whether States will able maintain accurate voter registration lists pursuant the NVRA and HAVA without fear lawsuits that disregard the intent and purpose these laws. Plaintiffs allege that Tennessee improperly removed approximately six (6) names from the voter rolls, oversight which has since been corrected. Plaintiffs nonetheless ask for needlessly drastic preliminary injunction address minor clerical mistake that law remedied the availability provisional ballot and fact has already been remedied the appropriate election officials. this Court rules favor Plaintiffs, could have chilling effect other States efforts prevent election fraud performing ordinary voter list maintenance. addition, would eviscerate Congress careful balancing act passing the NVRA and HAVA, which were intended both increase lawful voter access and increase the integrity elections. 	Plaintiffs Requested Remedy Drastically Disproportionate the Alleged Violation 
Plaintiffs appear believe that the occurrence any administrative error, matter how small, States efforts maintain accurate voter rolls constitutes the absence safeguards 
The Pew Center the States, Inaccurate, Costly, and Inefficient: Evidence That Americas Voter Registration System Needs Upgrade, (February 2012), available pdf (visited June 2012). 
and violation voting rights. does not. Neither HAVA nor the NVRA supports Plaintiffs 
conclusion. Their argument constitutes dangerous invitation for this Court drastically limit the important protections election integrity crafted Congress. Plaintiffs are asking for immediate injunction forcing Tennessee implement state-level purging safeguards and review county-level purging decisions for inaccuracies. Plaintiffs Memorandum Support Motion for Preliminary Injunction (Plaintiffs Memorandum) This grossly disproportionate response. 
Tennessee has voting-age population over 4.8 million citizens.3 Plaintiffs can only allege with any evidentiary basis that Tennessee accidentally removed six (6) lawful registrants from the voting rolls. Memorandum other words, Tennessee voting officials efforts comply with the voter list maintenance provisions the NVRA and HAVA had established error rate .000125, approximately one one-thousandth one percent. 
The error apparently affected people who own real estate two jurisdictions Tennessee, such regular home and vacation home. Plaintiff Davis admits his name was accidentally removed from one voter list because owns two homes, one Pickett County and one Fentress County. Second Amended Complaint  30-35. Tennessee allows its citizens vote certain municipal issues each jurisdiction where they own real estate, although they may only vote for candidates for federal office one jurisdiction. Because this rule, county election official who was trying clean the rolls duplicates (as required NVRA and HAVA) saw Plaintiff Davis name the rolls two counties and apparently 
See Election Assistance Commission, Report the 112th Congress, June 30th, 2011, The Impact the National Voter Registration Act 1993 the Administration Elections for Federal Office 2009-2010, 25, available (visited June 2012). 
believed had moved. This error caused some small number voters who own two houses two different Tennessee jurisdictions have their names removed from the rolls one those localities. 
Plaintiffs not allege that the administrative error was motivated any ill intent, discrimination, deliberate effort disenfranchise voters who own two homes. Plaintiffs position therefore demonstrates near total disregard for the careful balancing interests modern voting laws, and nearly resembles parody historically reasonable arguments for protecting citizens against genuinely unlawful state denials voting rights. 
Also importantly, Plaintiff Davis was not ultimately denied the right vote this case. Rather, his primary objection seems that was inconvenienced. Despite his name not appearing the rolls, Plaintiff Davis was offered the opportunity vote provisional ballot but turned down. Second Amended Complaint  18. Plaintiff Davis pique does not constitute injury justifying the extraordinary step injunction limiting the States ability ensure millions regular Tennesseans have confidence the integrity elections. 
Plaintiffs complain about the hardship suffered Plaintiff Davis, and speculate about what hardships might befall other citizens the State Tennessee allowed continue its job ensuring voter rolls are accurate. Plaintiffs Memorandum 2-4, 11-12. However, Plaintiffs fail express any concern over whether the voting registration system Tennessee serving the purpose for which intended, namely ensuring elections are fair, lawful, and conducted that the results can audited and verified after the fact. The purpose voter registration ensure legitimacy elections guaranteeing every citizen gets one vote  but only one vote. Fraud prevention part the reason for this policy, but the U.S. Supreme 
Court has stated, ensuring the legitimacy elections has independent value unto itself. 
According Justice Stevens, writing for the Court: 
Finally, the State contends that has interest protecting public confidence 
in the integrity and legitimacy representative government. Brief for State 
Respondents, 53. While that interest closely related the States interest 
preventing voter fraud, public confidence the integrity the electoral process 
has independent significance, because encourages citizen participation the 
democratic process. the Carter-Baker Report observed, the electoral system 
cannot inspire public confidence safeguards exist deter detect fraud confirm the identity voters. Crawford, Marion County Election Bd., 553 U.S. 181, 197 (2008). Thus, election integrity important State interest regardless whether fraud has ever taken place the history U.S. elections, whether ever will. 
Tennessees efforts maintain accurate voter rolls both deters fraud and inspire confidence that elections will lawful. Plaintiffs view, that goal minimal importance. Plaintiffs apparently take the position that one voter has expend additional effort correct mistake registration list, that effort greater harm the public interest than millions voters losing confidence that elections are being conducted fairly and turning away from participation American public life. Amici respectfully disagree with Plaintiffs position, and urge this Court the same. 	HAVA and NVRA Made Careful Compromises and Balanced Interests between Voter Access and Election Integrity, Which Plaintiffs Now Ask the Court Undo 
The NVRA was enacted 1993 to establish procedures that will increase the number eligible citizens who register vote elections for Federal office, well protect the integrity the electoral process and ensure that accurate and current voter registration rolls are maintained. U.S.C.  1973gg(b)(1), (3)-(4). Congress passed HAVA 2002 simultaneously improve ballot access and expand election integrity measures.4 Plaintiffs focus exclusively those provisions the NVRA and HAVA that serve safeguard the exercise the right vote, and discount simply ignore corresponding provisions that require states take efforts protect against voter fraud. Congress struck careful balance between those two objectives the NVRA and HAVA. Plaintiffs reading these statutes undermines Congress carefully constructed balance. Under Plaintiffs interpretation, Tennessee may not engage voter list maintenance required Congress unless does flawlessly. This interpretation would render the equally important mandates protect against voter fraud virtually meaningless. close examination the NVRA and HAVA illustrates that both laws contained companion provisions designed function together protect the twin goals voter access and ballot integrity. For instance, Section the NVRA, U.S.C.  1973gg-5, was passed expand opportunities register vote requiring states allow citizens register public assistance agencies. Along with it, the provisions Section the NVRA, U.S.C.  1973gg-6, were designed increase the integrity elections requiring maintenance registered voter rolls ensure they are accurate. Section therefore the counterpart Section The two provisions represent carefully crafted compromise the U.S. Congress increase both voter registration and the integrity voter rolls. 
Section 302 HAVA, U.S.C.  15482, expanded access the ballot box with new rules guaranteeing the right vote provisional ballot for all U.S. citizens. The provisional ballot law Section 302 requires all states allow voters who claim they are lawfully 
See 148 Cong. Rec. H7836, H7852 (daily ed. October 10, 2002) (statement Rep. Boehlert) (This bill carefully constructed compromise. expands the right vote requiring that states allow provisional voting. includes commonsense measures prevent fraud.). 
registered eligible voters jurisdiction but who not appear the voter rolls submit 
provisional ballot counted once their eligibility determined. Section 302 was designed guarantee that lawful voter would ever turned away from the polls. with Section the NVRA, Section 302 HAVA was also passed along with counterpart provision ensure that the new rules allowing easier access the ballot box did not also create easier opportunities for fraud. Section 303 HAVA, U.S.C.  15483, serves that counterpart. HAVA Section 303 instituted several provisions designed ensure fairness and accountability the conduct elections. Several these provisions created new requirements designed substantially expand states ability maintain accurate voter rolls. These provisions included: (i) requiring States create single, computerized, state-wide official voter registration list (42 U.S.C.  15483(a)(1)); (ii) requiring citizens obtain provide proof identification prior registering vote (42 U.S.C.  15483(a)(5), 15483(b)(2)(A)); (iii) requiring registrants affirm they are U.S. citizens prior registering vote (42 U.S.C.  15483(b)(4)(A)(i)); and (iv) requiring state election officials compare voter registration data against drivers license records (42 U.S.C.  15483(a)(5)(B)(i)). addition, several other HAVA Section 303 provisions merely reiterate and clarify states existing voter list maintenance obligations under Section the NVRA. This was done because Congress realized after the 2000 election that the requirement NVRA Section maintain accurate voter registration lists was not being followed.5 Accordingly, with its 2002 148 Cong. Rec. S10488, S10490 (daily ed. October 16, 2002) (statement Senator Dodd) (The authors this bill found that voter rolls across the country are inaccurate very poor order, the condition many jurisdictions, particularly the large jurisdictions, are state crisis. Voter lists are swollen with the names people who are longer eligible vote that jurisdiction, are deceased are disqualified from voting for another reason. has been found that 650,000 this country are registered more than one State. October 2002, 60,000 
HAVA legislation, Congress included language clarifying how and what extent the states were 
required perform the voter list maintenance activities that they were already obligated perform under Section the NVRA. See U.S.C.  15483(a)(2)(A)(i), 15483(a)(2)(A)(ii) (citing U.S.C.  1973gg-6), and U.S.C.  15483(a)(4)(A) (citing the voter registration list removal requirements U.S.C.  1973gg seq.). The list maintenance provisions Section 303 HAVA merely clarify and elaborate the States existing list maintenance obligations under Section the NVRA. One way which HAVA clarifies the existing NVRA voter list maintenance obligations specifically requiring Tennessee perform regular voter list maintenance manner that ensures that duplicate names are eliminated from the computerized list. U.S.C.  15483(a)(2)(B)(iii). 
Furthermore, when enacting HAVA, Congress realized that the NVRA lacked adequate fail-safe provision ensure that States were not put risk accusations voter disenfranchisement simply complying with their voter list maintenance obligations under Section the NVRA. This the reason Congress added HAVA Section 302. The provisional ballot law Section 302 therefore accomplished two things simultaneously  ensured American would denied his lawful right vote, and ensured state election official would afraid maintaining accurate voter lists removing ineligible registrations. The legislative history demonstrates this: 
Voters who not appear registration list must allowed cast provisional ballot. Voters without proper identification are also allowed vote provisionally, but provisional ballot will counted until properly verified legal vote under state law. believe these meaningful reforms will long way helping states clean voter rolls, and thus clean-up elections. Will Rogers once said, I love dog. does nothing for political reasons. Our election laws should keep that way. 
people were registered Florida and least one other state. St. Louis County, some 30,000 people were registered vote the county and least one other county the State.). 
148 Cong. Rec. S10488, S10489 (daily ed. October 16, 2002) (statement Senator Bond) 
(emphasis added). Senator Bond continued: 
The provisional ballot will extended those who arrive the polls find that their name does not appear the register voters. The statute states that the poll worker shall inform the voter the right vote provisional ballot. That right, however, extended those who believe that they are registered vote and are registered vote that particular jurisdiction. not the intent the authors this bill extend the right vote provisional ballot everyone who shows the polls and not registered for those who are not eligible vote the election. The intent provide protection those who fact registered but not appear the register because administrative mistake oversight. 
148 Cong. Rec. S10488, S10491 (daily ed. October 16, 2002) (statement Senator Bond) (emphasis added). therefore critical recognize that the provisional ballot rule Section 302 HAVA constitutes the built-in statutory remedy for voter list maintenance errors that could occur when states attempt comply with Section the NVRA Section 303 HAVA. This fail-safe provisional ballot voting rule was the remedy that Congress intended for voter list maintenance errors, such the one that occurred this case. Plaintiffs approach therefore directly contrary the mandates HAVA and the NVRA. Congress did not intend for courts eliminate ballot integrity measures whenever fail-safe provisions not work any more than intended courts eliminate the provisional ballot option States that have done poor job maintaining accurate voter rolls. 
Plaintiffs also devote substantial amount effort arguing that, because Tennessee Counties have been charged with certain list maintenance and safeguarding responsibilities, the State Tennessee therefore violation the law. Plaintiffs Memorandum 4-7, 15-19. This inaccurate. interpreted the Courts, states and counties often share responsibility for compliance with federal election law, particularly NVRA Section voter list maintenance responsibilities. See United States Missouri, 535 F.3d 844, 849-850 (8th Cir. 2008) (U.S. Missouri); see also ACORN Scott, 2008 U.S. Dist. Lexis 101778 5-6, (W.D. Mo. Dec. 17, 2008) (The Eighth Circuits opinion that case recognized that Missouri could not [held] responsible for enforcement the NVRA against local election authorities, even though local election authorities noncompliance was relevant determination whether the State had fulfilled its own obligations under the NVRA conduct general program that makes reasonable effort remove the names ineligible voters from the official lists eligible voters[.]) (quoting U.S. Missouri, 535 F.3d 847-848, 851.). addition, since most the voter list maintenance provisions HAVA merely clarify those already present the NVRA, would make little sense for the laws interpreted conflicting ways. The legislative history HAVA confirms that Congress did not intend alter the voter list maintenance obligations Section the NVRA. HAVAs imposition statewide voter list requirement was intended additional tool ensure list accuracy and prevent fraud  not make more difficult remove ineligible names: well documented that registration lists around the country are disarray; they are bloated and contain the names thousands people that longer belong the list. part, this because live increasingly mobile society. also because congress made more difficult for localities maintain clean lists when Motor Voter was passed. [HAVA] will not affect the obligation the States conduct list maintenance according the provisions the National Voter Registration Act. This legislation does not limit the circumstances under which States can remove names from voter lists... The requirement for state-wide registration system will enhance the integrity our election process, making easier for citizens vote and have their ballots counted, while clearing ineligible and false registrations from the voter rolls. 
148 Cong. Rec. S10488, S10492 (daily ed. October 16, 2002) (statement Senator Bond) (emphasis added). this Court were grant Plaintiffs request and order State review every county 
officials voter list maintenance decision, would effectively end voter list maintenance activities Tennessee. Both states and counties need actively involved the effort ensure voter lists are accurate. Tennessee has been fulfilling this task intended. Light the Congressional Compromises the NVRA and HAVA, Plaintiffs Requested Remedy Unacceptable 
Given the foregoing, one left wonder why Plaintiffs have not asked for better HAVA Section 302 enforcement Tennessee, such requiring improved provisional ballot access, their request for temporary injunction. Plaintiffs apparently place low priority accurate voter registration rolls. protection voting rights were Plaintiffs only focus, then ensuring the proper application the mandated provisional ballot law would seem the appropriate remedy  not mention the remedy Congress intended. the language HAVA, the purpose the provisional ballot requirement was ensure fail-safe voting for citizens. U.S.C.  15483(b)(2)(B). Accordingly, the very language HAVA contemplates the possibility failures voter registration list maintenance activities and then provides immediate remedy the form requiring provisional ballots supplied the event failure. 
Plaintiffs requested remedy would make more difficult for Tennessee comply with Section the NVRA and Section 303 HAVA. Congress has already designed the remedy for instances failures lawful voter list maintenance activities. The Congressional remedy was ensure that citizens whose names were inadvertently removed from the voter rolls can still vote provisional ballot pursuant Section 302 HAVA. Remedying failure the implementation Section 302 HAVA preventing future effective and lawful implementation Section the NVRA would get matters backwards, flying the face 
Congressional intent. This Court should not attempt undo the carefully crafted and brokered 
balancing acts Congress achieved with the passage both the NVRA and HAVA. 
The instant case very similar recent case Colorado. That case also pitted the two 
critical election law interests  access the ballot box and election integrity  against each 
other when the plaintiffs asked for preliminary injunction stop Colorado from cleaning its 
rolls. However, the Court denied the request language that directly applicable here: 
With regard the public interest, Plaintiffs simply posit that protecting fundamental voting rights the public interest. This axiomatically true. also true, however, that the relief requested --a wholesale resignation 6000 cancelled/Failed -20 day voters whose application addresses were erroneously given recorded active status --deprives the State important means effecting its mandate register only eligible voters and ensure accuracy its voter rolls. The NVRA contemplates that states will enact programs confirm voter eligibility and registration. preventing election officials from being able confirm the eligibility those 6000 cancelled registrants for the two-year period contemplated NVRA  8(d), the relief requested adversely impacts the public interest. 
Common Cause Colorado, Buescher, 2010 U.S. Dist. LEXIS 114460 8-9 (D. Colo. Oct. 
18, 2010) (emphasis added). 
Two weeks later, the same Colorado court denied summary judgment for the plaintiffs 
and entered judgment for the state Colorado, protecting States interest complying with 
federal law ensure their voter rolls were accurate: 
Given the concomitant mandates under the NVRA that states register eligible applicants and maintain accurate voter registration rolls, decline adopt the narrow reading NVRA  8(d) urged Plaintiffs. Plaintiffs reading interferes with Colorados ability confirm registration applicants initial residential eligibility and prevents from moving voters who refuse fail confirm their initial eligibility out active status SCORE for two federal election cycles. 
This interference neither mandated  nor consistent with the NVRAs 

overall purposes. 
Common Cause Colorado, Buescher, 750 Supp.2d 1259, 1263-1264 (D. Colo. 2010) 
(emphasis added). 
The Colorado court recognized that the delicate balancing act achieved Congress 
passing laws safeguard our most precious liberties could not subject the vagaries 
judicial re-interpretation. While Plaintiffs pleas about voting rights and disenfranchisement 
carry emotional weight, clear-eyed jurists know better than let simple mistake undo decades careful lawmaking. Even some small amount votes are either not taken counted, this 
does not justify negating laws designed ensure all elections are legal, accountable, and 
safeguarded against fraud. Judge James Carr explained: 
Balancing these two interests --avoiding fraud, and ensuring that every ballot counts --I conclude that, though some small number provisional ballots may not counted result the identification requirements Directive 2004-7, the risk loss those ballots, however unfortunate, justified the likely inability, even less burdensome (and less verifiable) forms identification were allowed required, detect and prevent election fraud. 
League Women Voters Blackwell, 340 Supp.2d 823, 827-28 (N. Ohio 2004) (emphasis 

For all the foregoing reasons, amici curiae respectfully request that this Court DENY the 
Motion for Preliminary Injunction. 

Dated: June 2012 Respectfully submitted, 
/s/ Chris Fedeli 
Paul Orfanedes Chris Fedeli 
Motion Appear Pro Hac Vice Pending 
JUDICIAL WATCH, INC. 425 Third Street, SW, Ste. 800 Washington, 20024 202-646-5172 office 202-646-5199 facsimile 

Local Counsel: 
James Roberts, Jr. James Roberts, Jr. BPR 017537 Janet Layman, BPR #021569 ROBERTS LAYMAN 1700 Hayes Street, Suite 303 Nashville, Tennessee 37203 615-242-2002 office 615-242-2042 facsimile 
Attorneys for Amici Curiae 

Certificate Service hereby certify that June 2012, copy the foregoing was filed electronically with the Clerk the Court using CM/ECF system, which will send notice electronic filing the counsel record listed below. 
Janet Kleinfelter Deputy Attorney General Public Interest Division Office the Tennessee Attorney General Box 20207 Nashville, Tennessee 37202 
(615) 741-7403 
George Barrett Barrett Johnson LLC 217 Second Avenue North Nashville, Tennessee 37201 615.244.2209 office 615.252.3798 facsimile 
/s/ James Roberts, Jr.