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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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Politics Politics Beat Blog

New Order to State: Make Eligibility for Mail-in Voting Clear

Chancellor Lyle

As the time to actually cast votes grows ever nearer, the battle continues between exponents of pandemic-related mail-in voting and resisting forces in state government.

Petitioners for the mail-in process gained at least a temporary victory this week in the form of a new order from Nashville Chancellor Ellen Hobbs Lyle to state and local election authorities to include clear and explicit language on any public advisories regarding eligibility for mail-in voting permission to apply on the basis of “underlying
medical or health conditions which in their determination render them more susceptible to contracting COVID-19 or at greater risk should they contract it” [italics ours].

The order also requires an explicit acknowledgement of eligibility for caretakers of “persons who have underlying medical or health conditions which in their determination render them more susceptible to contracting COVID-19 or at greater risk should they contract it.” It also requires the State to ensure that county election officials use the same language in their instructions to voters.

Chancellor Lyle’s order requires that state Election Coordinator Mark Goins file “a Declaration with this Court by noon, September 1, 2020” that the order has been complied with.

The order was in response to a petition from plaintiffs Up the Vote 901, a group of Memphians (as well as the ACLU), that states election officials had not followed through on instructions from the state Supreme Court, which, in dismissing a temporary injunction
by Chancellor Lyle requiring universal mail-in eligibility, directed election authorities to make public the fact of eligibility in language like that quoted above in their public advisories.

The judge noted, as the plaintiffs had, that a spokesperson for the state had made a last-minute concession in the hearing before the High Court that anyone with such an underlying condition or their caretakers could vote absentee, and that individual voters were entitled to determine for themselves their susceptibility to contracting COVID-19.

It now remains to be seen if the state, which has consistently procrastinated in dealing with such directives as Lyle’s or actively resisted them, will avail itself of yet another appeal in relation to the current order.

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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.

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Done Deal! 2019 People’s Convention Makes New History

Stare Rep. London Lamar presents a citation (from Tenn. House Speaker Glen Casada, no less) honoring 1991 Peple’s Convention vets Shep Wilbun and state Rep. Barbar Cooper as Rev. Earle Fisher looks on

How did the People’s Convention of 2019, held at the Paradise Entertainment Center on Saturday, compare with the seminal People’s Convention of 1991 that launched the successful campaign of Willie Herenton, Memphis’ first elected black mayor? As an apple to an orange, though both were undertaken with the aim of expressing the will of what one of this year’s convention participants called a “marginalized” population.

The 1991 event drew roughly 2,000 participants to Cook Convention Center; this new one drew a smaller number. Estimates range from 200 to 600, depending on the extent of the estimator’s involvement with the event. The actual number of attendees at Paradise probably closer to the low end, but Internet logs of the event, which was streamed online, suggest a far larger cybernetic audience, maybe in the thousands.

Under the umbrella of the ad hoc group, Up the Vote 901, numerous organizations associated themselves with the 2019 event: AFSCME, Black Lives Matter, MiCAH, etc., an extensive land impressive list, and preliminary statements by spokespersons for these groups took up almost two hours of the five hours-plus that the event lasted. Shelby County Mayor Lee Harris was there to add his exhortation as was Mayor Frank Scott Jr. of Little Rock.

There was something of a collective organizing group, though two of the major figures were the Rev. Earle Fisher and Sijuwola Crawford. Unmistakably, Shelby County Commissioner Tami Sawyer was a booster of the convention and was boosted by it in return, to the point that other major candidates — notably Mayor Jim Strickland and former Mayor Herenton — kept their distance.

To note the more sectarian and limited nature of the 2019 convention, as compared to the 1991 original, which arguably spoke to Memphis’ aspiring black population per se, is not to downgrade it, however. This year’s convention drew inspiration and cadres from such earlier grassroots expressions as the Bridge confrontation of 2016 and the Take “em Down 901 campaign against the city’s Confederate statuaries.

The agenda for the People’s Convention of 2019 included attention to a diverse set of issues — including housing, education, public health job creation, justice reform, and voting equity — but its overtly political aims were to endorse candidates willing to “align” themselves with those aims.  Candidate response was somewhat uneven and it remains to be seen how well those who responded to the convention call do in October, and what sort of groundswell can be generated between now and then.

Municipal Court Judge Jayne Chandler, the one candidate present who was enjoined by the Judicial Canon of Ethics to avoid overtly political statements, managed to circumvent that prohibition with some appropriately forceful — and clearly permissible — rally cries:

“‘Wait’ almost always translates to Never!” “They used to feed you chicken and watermelon. Now they feed you crawfish!” (That was a reference to the crawfish fest held by opponent David Pool on the previous weekend.) “I’m not going in reverse anymore.” (That was a reference to Chandler’s response for circumventing a transmission issue, and it made a nifty metaphor.)

The judge was the second of several candidates who appeared as the only participating representatives from their particular election contest (or who, in the jargon of the event, were there to “align” their candidacies with the convention agenda). And she was the first to be acknowledged as a “consensus” choice of those voting.

At that stage of things, the number of people voting electronically (including those present as well as those streaming the event online) had to reach a ceiling of 200 to achieve viability for the outcome. Chandler made the cut, whereas the first hopeful appearing solo, city court clerk candidate Demeatree Givens, had apparently not.

It was hard to tell whether Givens had been adjudged to have fallen short of approval or had been victimized by gremlins in the electronics of voting, carried out via the prescribed website, Menti.com. In any case, the threshold of 200 votes cast was adhered to through the first several candidate rounds but was allowed to dip to 120 by the end of the event, which was in its sixth hour by the time of a culminating vote for a mayoral candidate.

In any event, several candidates would meanwhile get the convention nod — two of whom, Orange Mound activist Britney Thornton for the District 4 seat; Theryn Bond in District 6 — were the sole candidates appearing, but both of whom gave good accounts of themselves.

There were actual contests for successive positions. The District 7 contest would see several aspirants on stage: Michahalyn Easter Thomas, Thurston Smith, Will “the Underdog” Richardson, and Larry Springfield. This was a spirited colloquy, with Thomas and Smith sounding notes of populism and Smith boasting his entrepreneurial know-how and Springfield stressing his personality. Thomas would get the nod.

At this point, heading into the consideration of candidates for super-district city council seats and mayoral hopefuls, time was made for a segment honoring two veterans of the original People’s Convention of 1991, the one that would nominate Willie Herenton as the consensus black candidate for mayor.

As it happens, Herenton, who went on to defeat then-incumbent Dick Hackett and serve 17 years as the city’s chief executive, is once again a candidate for mayor, but he was conspicuously absent from this year’s event. His name was invoked, however, by former Councilman, County Commissioner, and Juvenile Court Clerk Shep Wilbun, one of the two first Peoples’ Convention vets being honored. Besides being one of the original organizers of the 1991 event, Wilbun had been an aspirant for the mayoral role himself back then, and he would cite Herenton’s victory at that convention as proof of the objectivity of that event and as a precedent for that of the current one, which, as Wilbun knew, had been widely rumored to be a “setup” for mayoral candidate Tami Sawyer.

The other honoree from 1991, 90-year-old state Representative Barbara Cooper, recalled for the audience her lifetime of “40 years of segregation and 40 years of integration” and drew implicit parallels between the two conventions. In one particular, though, Cooper was at variance with the spirit of the current convention.

Several convention participants, including members of collaborating organizations and some of the candidates for office, had made a point of extolling Ranked Choice Voting (also known as Instant Runoff Voting), a method of balloting that allowed voters to rank candidates for office in order of preference, creating thereby a means for re-assigning the secondary preferences to reach a majority verdict in cases where, on first balloting, none had existed.

RCV has been approved by Shelby County voters twice but has been resisted by incumbents on the current city council, who, along with state election officials, have been able to delay its planned implementation in the forthcoming city election.The method was implicitly regarded as akin to the other progressive elements of the 2019 People’s Convention agenda and in addition to the other testifiers, a figure in the RCV movement, Aaron Fowles, had been included in the original lineup of co-sponsors allowed to address the convention.

But Cooper, in her somewhat rambling remarks to the crowd, made it clear that she had bought into a contrary theory advanced by RCV opponents that the method would run averse to the interests of the city’s current black voting majority. “IRV may be good for a minority but I’m not a minority,” Cooper said.

It was a break in the texture of things — a generational one, as clear and obvious as was Herenton’s absence from this would-be re-do of his 1991 triumph, and a deviation from populist idealism in the direction of imagined self-interest — whether a confirmation or rejection of Wilbun’s claim that the two conventions shared “the same agenda,” it was hard to say.

This moment for the elders was followed by a trio of contenders for the Super-District 8, Position 1 seat — educator Nicole Clayburn, lawyer J.B. Smiley, and Whitehaven activist Pearl Eva Walker, the ultimate endorsee. Each was asked to opine on RCV, and each responded without ambiguity: The people had spoken for the process in two referenda, and it — and they — needed to be heeded.

The convention was back on message and would stay that way — through effective solo presentations by Frank Johnson, candidate for Super District 8, Position 2, and Erika Sugarmon, candidate for Super District 9, Position 1.

The stage was set for the two mayoral candidates present — the aforementioned Sawyer and LeMichael Wilson, an unsung but hard-working mayoral entry who in his turn would cover the waterfront of social issues and inner-city concerns.

But it was Sawyer’s day, though she had to wait for hours to claim her moment before a somewhat diminished crowd. In the five minutes allotted to her, Sawyer noted that in the 200 years of its history, Memphis had never had a woman as mayor. Sensing that she was well enough known to avoid having to recount all her activist deeds of the last few years, notably including her spearheading of community efforts to dispose of Memphis’ Confederate monuments, she talked about the need to redistribute the city’s resources “to all neighborhoods” and scorned Strickland for what she said were inadequate efforts on behalf of the whole Memphis population.

She promised to do something concrete about the “school-to-prison pipeline” and to up the percentage of blacks and women benefited by the city’s ongoing MWBE (Minority and Women’s Business Enterprise) efforts.

As expected, Sawyer was named the consensus nominee for mayor by the convention, and by Sunday morning, an icon announcing her as the “winner” was a posted link on Facebook.

There is no disputing Sawyer’s determination, but neither is there any gainsaying the enormity of the task before her — a far greater one than confronted Herenton in 1991. The odds of her accomplishing the miracle of election in 2019 are beyond enormous, but at the very least she has established a head start in community consciousness that could pay dividends in 2023, when Strickland would be term-limited and such other likely candidates as current Shelby County Commission Chairman Van Turner will be making their move.