Tag: Tennessee Secretary of State

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Nashville Judge Awards IRV a New Chance to Succeed

Instant Runoff Voting logo.

Nashville jurists — members of the Chancery Court there, especially — have been good to Memphis plaintiffs of late, and Tuesday saw another instance of that.

Chancellor Patricia Head Moskal reversed a prior decision by the Administrative Law Judge, a functionary of the Tennessee Secretary of state’s office, who had summarily dismissed, for alleged lack of legal standing, the plaintiffs’ petition in 2019 on behalf of several then City Council candidates as well as nd Ranked Choice Tennessee. The plaintiffs had sought to have Instant Runoff Voting (IRV) declared consistent with state election laws and implemented on the Memphis city election ballot that year.

The Memphis City Council  had rejected IRV as a ballot format, though the process, which allows for successive resamplings of votes cast until absolute majorities are obtained, had  been approved in several referenda by the city’s voters.

The Chancellor remanded the case back go the ALJ for review — not a final victory as such for the plaintiffs but a bona fide second chance.  Should the Administrative Law Judge rule against the IRV after review, the plaintiffs would then have the opportunity to appeal the case further within the legal system.

  All this was noted in a reaction to Moskal’s decision  by Steve  Mulroy, a University of Memphis law professor and former County Commissioner, who had represented several of the plaintiffs. Said Mulroy: “The litigation is by  no means over, but this is a significant step forward for us. We look forward to the day when a court rules on the merits of our claim, because we are confident that IRV is indeed legal under Tennessee law.  Memphis voters supported IRV in three different referenda in two elections, and have been waiting for 13 years for it to be implemented.”

Mulroy was also an attorney for plaintiffs in a previous case heard by another Nashville Chancellor, Ellen Hobbs Lyle, who granted a widening of Tennessee voters’ opportunity to apply for mail-in ballots last year in view of the ongoing pandemic. The Secretary of State’s office was on the resisting end of that case, as well

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Memphis Lawyers Hit GOP Effort to Oust Judge Who Expanded Mail-in Voting

Chancellor Lyle

One of the more significant acts of jurisprudence in Tennessee in 2020 was a decision by Nashville chancellor Ellen Hobbs Lyle to strike down barriers in state law to mail-in voting.

Ruling last June on suits brought by a group of Memphis petitioners and the ACLU, Lyle declared she was suspending, for the duration of the pandemic, restrictions on absentee-voting for all eligible Tennessee voters.

In so doing, she rejected arguments from Tennessee Secretary of State officials that expanding mail-in voting on that scale would overwhelm state election offices and that fear of COVID-19 was not sufficient grounds for avoiding in-person voting.

The state dragged its heels on complying and appealed, resulting in new orders from Lyle, followed by a hearing by the state Supreme Court, which by a one-vote margin vacated part of Lyle’s ruling but allowed a right to vote absentee due to “underlying medical conditions” that could be affected by COVID.

Now Republican members of the state House of Representatives are trying to get Judge Lyle removed for her efforts. A House ouster resolution, sponsored by 64 Republican members, maintains that Lyle “committed serious ethical violations and abused her authority by pursuing a personal and partisan agenda” in substituting her judgment for the restrictions on eligibility to vote absentee embedded in state law.

The resolution would create a 10-member committee, composed of five members each from the House and Senate, to make recommendations regarding Lyle’s status. Should the group recommend removal, a two-thirds vote in both chambers to do so would result in Lyle’s ouster from the bench.

Reaction came Friday from University of Memphis law professor Steve Mulroy, who argued the case for mail-in expansion last year before both Lyle and the state Supreme Court on behalf of the Memphis petitioners, members of Up the Vote 901. Said Mulroy: “Judge Lyle’s rulings were thoroughly based on the law and the factual record. The election relief she ordered was consistent with how almost every state reacted to the pandemic.

“The Tennessee Supreme Court ended up directing the state to do the bulk of that relief. Nothing she did was remotely ‘unethical,’ or approached the legal ‘for cause’ standard of misconduct required under the law for removal.

“If the legislature can remove a judge every time they don’t like a single decision, you can kiss judicial independence goodbye.”

Memphis lawyer Jake Brown, who also represented Up the Vote 901, added: “Chancellor Lyle is a dispassionate, serious-minded jurist. An attack on her is an attack on competence and the very notion of an independent judiciary. The language of this resolution is sophomoric in tone and plainly partisan in purpose.

“The Chancellor’s opinions in the absentee-ballot case were reserved and closely reasoned. Therefore, the only persons guilty of ethical violations here would be any members of the state bar who are also legislators that sign on to this frivolous pronouncement. “

No Tennessee state judge has been removed from office by the General Assembly since Chancellor David Lanier of Dyersburg was ousted after his conviction on seven federal charges of sexual assault in 1993.

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Dispute Over Election Machines Remains Unsettled

CREDIT: JB

The tug-of-war between Shelby County Election Administrator Linda Phillips and the adherents of paper-ballot voting over the purchase of new election machines continues apace.

The most recent development, detailed in a November 18th Flyer article, involved the administrator’s purchase of three new ballot-marking devices for the ongoing runoff elections in Collierville.

The machines are manufactured by the ES&S Company and are of a type previously preferred by a 4-1 vote of the Shelby County Election Commission but rejected for funding by the Shelby County Commision, which, in the interests of transparency, had established its own preference for handmarked paper-ballot devices in several prior votes.

The funding source for the three machines had been — publicly, at least — something of a mystery. According to SCEC sources, the machines were paid for by the office of the Secretary of State in Nashville

The purchase of the machines had been revealed last week in a formal SCEC press release, which contended that there had been no alternative to acquiring them, inasmuch as the old machines used by Collierville in the city’s first round of elections earlier this month were tied up, pending certification this week of the November 3rd results.

JB

Election Commissioner Bennie Smith

Early voting for Collierville’s mandatory runoff period had meanwhile been scheduled to begin on Wednesday of last week.

Controversies remain: One of the reasons for the  county commission’s rejection of the SCEC’s preference for the ES&S machines (which had been selected over two other bidders) had to do with the commission’s aforementioned preference for devices enabling the use of paper ballots.
But another reason had been the county commission’s objection to additional costs for accessories added by the administrator’s office to the bids received from ES&S and two rival bidders.

At its meeting of October 23rd, the SCEC board voted to re-submit its request for county commission funding of the ES&S machines, minus the objected-to accessories. That expenditure would be something like $3.9 million, as against the sum of $5,815,405 requested beforehand.

But, said Brent Taylor and Frank Uhlhorn, two members of the three-member SCEC Republican majority, this “skinny” version of the prior request would not include money for accessories needed to facilitate the option of paper-ballot voting for those who wanted it. As part of its selection process, the SCEC board had previously voted to provide the option, and its deletion now further imperils the prospects of county commission approval.

In the meantime, Election Commission Democratic member Bennie Smith has cried foul about the commission’s promised provision for paper-ballot voting during the Collierville runoffs.

Smith and members of his family are residents of Collierville and recently went to vote in one of the three available voting locations, trusting, said Smith, to this statement in the SCEC press release: “There will be a ballot-on-demand printer capable of printing ballots on-demand for those who want to use hand marked paper ballots. If a voter would prefer to vote on paper, that ballot will be printed on the spot.”

Instead of being offered that option, though, Smith said he and his family members were not informed of its availability and were able to vote by paper ballot only upon having to insist on it.

Complaining about this to Phillips, Smith received an email containing the following statement: “We aren’t offering the paper ballot option because at this moment it isn’t an option going forward. This was discussed in the October 23rd SCEC meeting; when the decision was made to go forward with the skinny resolution, it also eliminated the paper ballot option since the accessories included the BOD printers necessary to offer that option in Early Voting.”

The circumstances behind this standoff are either complicated or simple, depending one one’s perspective, but the bottom line is that the twain are nowhere close to meeting just yet.

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Judge Rejects State Non-Compliance Efforts on Absentee-Vote Order

The Flyer has learned that Davidson County Chancellor Ellen Hobbs Lyle has denied a motion from state attorneys seeking a stay of her order last week to permit universal absentee voting this year.

On Friday, Lyle had ruled affirmatively on legal motions on behalf of mail-in voting during the pandemic. The suits had been brought both by Memphis representatives of Up the Vote 901 and by members of the American Civil Liberties Union. But, as indicated in evidence presented by the plaintiffs on Monday, the state appeared to have resolved to take an obstructionist course rather than comply immediately with Lyle’s ruling.

The evidence included:

*the transcript of a telephone conversation between state Representative London Lamar of Memphis and personnel of the Secretary of State’s office who temporized and delayed rather than comply with Lamar’s request for an absentee ballot;

*a Twitter thread from an East Tennessee voter who documented efforts by the Knox County Election Commission to discourage her from voting absentee and threatened her with prosecution for fraud; and

*an email from state Elections Coordinator Mark Goins instructing election officials to “hold off on sending absentee applications to voters” who sought mail-in ballots for reasons relating to their apprehensions about contracting COVID-19 at the public polls.

Judge Lyle entered an ordered denying the state’s motion for a stay but permitting them to take the matter up on appeal. Meanwhile her original order on behalf of honoring vote-by-mail applications continues in effect, and she will preside over an upcoming hearing regarding sanctions against the state.