Washington Post: Judge blocks Tennessee law restricting voter registration drives

This story was originally published by The Washington Post.

A federal judge has blocked a new Tennessee law that sought to restrict paid voter registration drives, ruling it an “onerous and intrusive regulatory structure” that would have inhibited free speech and intimidated drive organizers with the threat of financial penalties.

U.S. District Judge Aleta A. Trauger ruled Thursday that state officials offered “simply no basis” for the new legislation, which was signed into law in May and scheduled to go into effect Oct. 1. The law would have imposed penalties of up to $10,000 for turning in inaccurate or incomplete forms, which its backers said was necessary in response to a flood of error-riddled and fraudulent forms last year.

Trauger said it was “unrefuted” that the law would have required registration drives to curtail and perhaps even discontinue their activities, harming Tennesseans “who merely wish to exercise their core constitutional rights of participating in the political process by encouraging voter registration.”

How a large-scale effort to register black voters led to a crackdown in Tennessee

Trauger’s preliminary injunction will remain in place as litigation on the case continues; its timing means that even if the law is ultimately upheld it is not likely to apply to upcoming local elections or the state’s presidential primary next March.

“Forcing the plaintiffs to wait while a case winds its way through litigation would mean taking away chances to participate in democracy that will never come back,” the judge wrote in a sharply worded 45-page opinion.

Mark Goins, the state’s top elections officer and one of the defendants in the suit, said in a statement: “Our goal is to properly register voters and make sure Tennesseans know their votes matter. We have worked with the Tennessee legislature to make it extremely easy to register to vote. One of the best ways to register to vote is online at GoVoteTN.com. Registering online is fast, accurate and secure.”

The case’s plaintiffs celebrated the decision as a victory for voting rights. Marian Ott, president of the Tennessee chapter of the League of Women Voters, said the law was so vague that it wasn’t clear whether it would apply to her organization, which sometimes receives grants to run registration drives in targeted communities.

Ott’s group also joined the suit to support other groups with paid canvassers because those groups typically target marginalized communities where one-on-one contact is necessary to boost registration numbers, she said.

“I’m delighted and enthusiastic for the work that we have ahead of us registering voters now that it will not be under the cloud of the threat of civil and criminal penalties,” she said.

The law arose after the Tennessee Black Voter Project led an unprecedented effort in 2018 to register new voters, particularly African Americans, in a state with one of the lowest registration rates in the country.

That effort prompted a surge of voter registration forms in the state’s largest cities last fall — and complaints that thousands of the applications, particularly in Memphis, had errors or omissions that required painstaking verification by overwhelmed workers.

Goins, a former Republican state lawmaker, called the crush of applications and the errors they contained a “dangerous” situation for other voters who were “properly” trying to register. He and other backers of the law regularly cited fraud as a reason for lawmakers to back the legislation, but they provided no evidence of coordinated fraud in the work of the Tennessee Black Voter Project.

The new law would have imposed penalties of up to $2,000 for each county where an organization with paid workers submitted more than 100 deficient forms. The fine would have grown much steeper — up to $10,000 per county — where the number of deficient forms exceeded 500.

The fact that the law would have provided an exception to organizations that do not pay their workers “both lacks justification in its own right and undermines any claim that its provisions are truly necessary,” Trauger wrote.

She also wrote that fine structure didn’t punish drives with a higher rate of errors but rather those with larger scopes. And she said a new requirement that forms be turned in within 10 days of collection would have forced drives to turn in deficient forms, creating a “double-bind” and punishing groups “for doing too much of something that it requires them to do.”

“The speech touched on by the Act falls within the highest level of constitutional protection,” she wrote. “Interfering with that speech is constitutionally suspect, whatever tool is used.”

Trauger’s ruling came in a lawsuit filed in May against state election officials by a group of organizations including the American Civil Liberties Union, Campaign Legal Center, the League of Women Voters, Rock the Vote, the American Muslim Advisory Council and the Fair Elections Center.

The law also would have prohibited registration drives from collecting voter information without consent of the voter, a requirement that Trauger said would have inhibited a core function of the drives: to follow up with voters and encourage them to vote.

The law would have required those running drives to register with the state, and it would have imposed mandatory attendance at state-sponsored training sessions. And it would have required registration drive operators to file sworn statements that they would comply with the law, a “regulatory hoop” that was “particularly without justification,” Trauger wrote, because “the law is the law already. No one has to swear to follow it in order for it to apply.”