CLC is challenging Tennessee’s strict limitations on who can vote by mail, its criminal penalties to deter people from assisting voters to obtain mail ballots, and the inability for those who vote by mail to fix their ballots if they are rejected due to a perceived mismatch with their signature on file.

ABOUT THIS CASE

Campaign Legal Center (CLC) is representing community organizations Memphis A. Phillip Randolph Institute (MAPRI), The Equity Alliance (TEA), Free Hearts, Memphis Central Labor Council (MCLC), the Tennessee State Conference of the NAACP, as well as individuals Sekou Franklin and Kendra Lee, in their efforts to extend the right to vote by mail to all voters so that in the August local elections and November 2020 general election, Tennessee voters will not have to choose between their right to vote and their health in the midst of the coronavirus pandemic. The lawsuit also seeks to stop enforcement of laws that make it a crime for organizations to disseminate requests for mail-in ballots to voters and ensure that the state cannot reject these ballots without notifying voters and giving them an opportunity to fix any perceived errors.  

Tennessee is one of a minority of states that still requires voters to provide an excuse before they can vote by mail in any election, and its list of excuses is extremely narrow. It is among an even smaller minority of states who have not removed or expanded that excuse requirement for the upcoming 2020 elections in light of the ongoing public health crisis triggered by the rapid spread of COVID-19.

Because of these unnecessary restrictions, voters like Kendra Lee and Sekou Franklin are ineligible under current laws to receive mail-in ballots in the mail. Like them, thousands of other Tennesseans – who are either themselves at heightened risk of complications from COVID-19 or have close family members who are – may be forced into a difficult choice about whether they can afford a serious risk to their health and that of their families’ in order to vote.

Even for those that are eligible to vote by mail, Tennessee law makes it difficult to access that right and to ensure voters’ mail ballots are counted. The state imposes criminal penalties for anyone other than an election official to give any voter an unsolicited request for a mail ballot, which is the form a Tennessee voter must complete in order to vote by mail. This makes it more difficult for community organizations – like the five that have signed on as plaintiffs in this lawsuit – to carry out voter engagement activities, particularly during a pandemic. Additionally, even after the voter submits their mail-in ballot, there is no guarantee that it will be counted because election officials have discretion to reject the ballot altogether because of perceived discrepancies in the voter’s signature.

On May 1, 2020, CLC filed a lawsuit against Tennessee Secretary of State Tre Hargett, Tennessee Coordinator of Elections Mark Goins, the Tennessee State Election Commission, and the Shelby County (Memphis) district attorney general to address these serious deficiencies with Tennessee’s vote by mail system. The lawsuit asks the court to require the state to allow voters who wish to vote by mail in the upcoming elections to do so in order to protect their health. It also asks the court to stop the state from imposing criminal penalties on people who give unsolicited mail-in ballot request forms to voters, so that they may exercise their right to vote by mail. And it requests the court to order the state to establish procedures ensuring that before a voter’s mail ballot is rejected, the voter is given an opportunity to address the perceived deficiency.   

Background

Under current North Dakota law, when an absentee ballot is submitted, local election officials must compare the signature the voter provided on their ballot envelope to the one on their absentee ballot application form. If the officials – who are untrained in signature analysis and provided with no meaningful guidance as to how to make these comparisons – determine the signatures do not “correspond,” the ballot is rejected and not counted. The voter who cast that ballot is not informed there is any issue with their signature or provided with a chance to verify their ballot and have their vote count.

Because signature evaluation is an unreliable, error-prone process for verifying ballots, North Dakota must provide voters with notice and an opportunity to fix ballot issues to ensure validly cast ballots are counted and mitigate the risk of disproportionately disenfranchising certain voters, including voters with disabilities and elderly voters. No two signatures – even from the same signer – are exactly alike. Factors such as age, disability, education, signing surface, and even type of pen can impact the consistency of a signature. With only two signature samples, it is very difficult to determine the identity of a signer, even for trained forensic handwriting experts. The unreliability of this process increases when the people evaluating voters’ signatures are not experts. In North Dakota, they are untrained and lack meaningful guidelines for how to conduct these assessments.

Under this system, certain populations of voters are at heightened risk of having their ballots rejected because of their signature variability, including voters with disabilities, elderly voters, very young voters, and voters for whom English is a second language. If the state fails to provide these voters with notice that there is an issue with their ballot and an opportunity to fix that issue, impacted voters who cast valid absentee ballots face certain disenfranchisement because of mistakes the state made.

Impact of COVID-19

North Dakotans have long relied on mail-in voting. In North Dakota’s 2014, 2016, and 2018 general elections, absentee ballots accounted for between a quarter and a third of all ballots cast.

In light of the COVID-19 pandemic, however, these numbers are certain to rise. On March 13, 2020, Governor Doug Burgum declared a state of emergency because of COVID-19. As part of a package of measures intended to mitigate the spread of the virus and keep North Dakotans safe, the Governor also issued an executive order waiving the requirement that counties maintain at least one in person polling place. As a result, many upcoming elections in North Dakota will be held exclusively by mail.

As more North Dakota voters rely on the state’s absentee ballot system to exercise their right to vote, more of them will be at risk of being disenfranchised because the state erroneously detects issues with their signatures.

Our Case

Campaign Legal Center (CLC) is representing Self-Advocacy Solutions (SAS), the League of Women Voters North Dakota (LWVND), and Maria Romo in a lawsuit seeking to ensure that North Dakota counts all validly cast absentee ballots.

Maria Fallon Romo is a para educator who works with special education students at a local elementary school. Although she usually votes in person, Ms. Romo attempted to cast her ballot by mail for the first time in 2018. Ms. Romo has multiple sclerosis, which makes standing and walking for long periods of time difficult. This makes voting by mail the most accessible option for her.

Unfortunately, after Ms. Romo cast her ballot, North Dakota determined that her signatures did not match and did not count her vote. She was never informed of this issue and had no opportunity to fix it before she was disenfranchised. Ms. Romo’s condition also impacts her fine motor skills and makes it difficult for her to write neatly or consistently. While she enjoyed the convenience of voting by mail, she is worried she will be disenfranchised again if she votes by mail in the future. In any event, in the upcoming mayoral election in her city, the election is being conducted entirely by mail in light of the coronavirus crisis.

About the Plaintiffs

SAS is a nonpartisan, nonprofit organization in Grand Forks, North Dakota that was created by and for people with disabilities. They work with their membership to ensure people with disabilities have their voices heard, including by exercising the right to vote.

LWVND is a nonpartisan, nonprofit organization with members across North Dakota. LWVND’s work is dedicated to protecting the right to vote for all eligible voters through advocacy, voter education, and providing direct assistance to voters.

The Center for Responsibility and Ethics in Washington (CREW) filed an administrative complaint with the Federal Election Commission (FEC) in 2014, alleging that a self-described 501(c)(4) “issues” group called New Models had violated important transparency provisions in federal campaign finance law by spending millions of dollars to influence the 2012 elections without registering as a political committee and making required disclosures about its activities and donors.

The administrative complaint detailed how New Models funneled millions of dollars—and a substantial majority of its annual budget—to super PACs in 2012, demonstrating that its “major purpose” was influencing elections for federal office. Although the FEC’s General Counsel recommended finding that there was reason to believe New Models had violated the law, the Commission deadlocked 2-2 and closed the case.

CREW’s lawsuit challenges the decision of the two FEC commissioners who voted to dismiss its complaint and asks the court to direct the FEC to take action to determine whether New Models failed to make required disclosures.

These two no-voting commissioners, whose decision is considered “controlling” for the purposes of court review, explained why they found that New Models was not required to register and report as a political committee in a lengthy written analysis of the statute and judicial precedent. CREW argues the commissioners’ analysis relied on incorrect interpretations of the campaign finance laws and should be set aside.

However, because the no-voting commissioners also included a perfunctory reference to the FEC’s “prosecutorial discretion” in the final sentence of their 31-page Statement of Reasons, the lower court concluded that it could not review the legal merits of their analysis. Instead, it found that a recent D.C. Circuit decision makes any FEC enforcement dismissal containing even a glancing reference to “prosecutorial discretion” automatically unreviewable in court—however much the dismissal was actually based on faulty legal analysis.

CREW appealed the district court’s ruling to the D.C. Circuit Court of Appeals.

CLC filed a friend-of-the-court brief in the D.C. Circuit in October 2019. The brief argues that the district court’s decision should be set aside because it rests on an unwarranted expansion of the FEC’s enforcement discretion that conflicts with Congress’s clear intent to provide for judicial review of the FEC’s refusal to take action on citizen complaints. The brief also argues that giving partisan minority blocs of commissioners the ability to shut down all judicial review of their decisions frustrates the careful partisan balance reflected in nearly every aspect of the agency’s design.

What’s at stake?

Transparency is a core purpose of the federal campaign finance laws, which mandate accurate reporting from individuals, groups, and entities that raise and spend money to influence federal elections. One key means of accomplishing this goal is by requiring registration and comprehensive reporting for “political committees,” groups that make $1,000 in contributions or expenditures in a calendar year and have a major purpose of influencing federal elections.

But the efficacy of these crucial transparency provisions depends on an FEC that enforces the law. Deadlocks at the six-member FEC—which requires four affirmative votes to take most actions—have persistently stymied enforcement action, especially in cases involving disclosure violations like those allegedly committed by New Models. When the FEC or a controlling bloc of commissioners refuses to take action on an enforcement complaint based on a legally unsustainable rationale, the courts must step in to correct the error. Preserving a robust judicial check on the Commission’s failure to enforce the law is a key means of securing a more accountable FEC.