By Joshua Wagner
By almost any metric, Tennessee’s record when it comes to participation in elections is among the most dismal in the country. According to MIT’s Election Performance Indicators, Tennessee was ranked 48th in voter turnout and 44th in voter registration in 2016, a systematic problem which pervades local, state, and federal elections. This is in no small part thanks to the state’s relatively restrictive voting laws. It seemed like Tennessee’s registration numbers would take another hit earlier this year when the state legislature passed HB1079, which would have seriously hindered the work of groups encouraging voter registration. However, voting rights interests and organizers of registration drives dodged a bullet when a federal court granted a preliminary injunction against enforcement of the law.
Tenn. Code Ann. §§ 2-2-142–143, signed into law by governor Bill Lee on May 2 and intended to take effect on October 1, provide for civil penalties of up to $10,000 for groups that commit various registration violations, including establishing registration quotas and submitting “incomplete” voter registration forms. The law also makes it a Class A misdemeanor for registration drive organizers to miss state-run training sessions. Although the law is only meant to apply to paid groups, challengers contend that it could be construed to apply to groups that use grant or stipend money as well. According to Tennessee Secretary of State Tre Hargett, the legislation was introduced in response to a large number of incorrectly filled out or incomplete forms submitted by the Tennessee Black Voter Project last year. The law, claims Hargett, is necessary in order to promote election security.
Aleta Trauger, United States District Judge for the Middle District of Tennessee, did not agree. On September 12, she issued a preliminary injunction against enforcement of the law, citing a number of Constitutional concerns. The court rejected the State’s argument that an injunction would “rob the public and the court of the opportunity” to see how application of the law would play out, finding instead that there was “simply no basis” for concluding it would provide any benefit that would outweigh the potential harms. Among these harms, the court pointed out that the mandatory training requirement “insert[s] the government . . . into the associational activity between voter registration workers, directly implicating core First Amendment interests,” and that the penalties are “likely to have a chilling effect” on voter registration drives.
The Tennessee law is likely the first of its kind to be passed in the country, although a similar bill is being considered in Texas. Such laws are ostensibly passed to enforce election security, but many commentators have suggested that they are politically fueled responses by Republican-controlled legislatures to the dramatic increase in voter registration and turnout seen during the 2018 election cycle. Penalties, like those imposed by the Tennessee law, may serve to suppress voter registration drives, which are frequently held for the benefit of minority and low-income communities that lean Democratic. Bradford Berry, general counsel of the NAACP, has said his organization is committed to overturning such laws, which he sees as being in “conflict with some of our nation’s most fundamental ideas,” and with the Constitution. On the other hand, supporters of penalties for knowingly registering voters improperly such as governor Lee have contended that the laws are necessary to “create free and fair elections and make sure we don’t clog the system.”
The Tennessee lawsuit, which is being brought by several voting rights organizations including the League of Women Voters and the American Muslim Advisory Council, is ongoing, but the plaintiffs can now rest assured that the penalties will not be enforced before a final judgement is rendered.