TN Notice Letter on Compliance with NVRA Section 8

TN Notice Letter on Compliance with NVRA Section 8

October 25, 2016

Dear Secretary Hargett:

We write to notify you that the State of Tennessee is not in compliance with Section 8 of the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20507, which prohibits States, including Tennessee, from removing voters from the voter rolls except in certain specified circumstances and pursuant to specific procedures. Sections 2-2-106(c) and 2-2-106(e) of the Tennessee Code describe a process in which voters who do not vote in a period of “two consecutive regular November elections” are sent a forwardable confirmation notice, and voters who do not respond to the notice, update their registration, or vote in the subsequent period “between the time the notice is sent and the second regular November election held after the notice was sent,” the voter’s registration is “purged.” Tenn. Code Ann. § 2-2-106(c), (e) (2016). The United States Court of Appeals for the Sixth Circuit, which includes Tennessee, recently ruled that this type of process violates the NVRA. See A. Philip Randolph Institute, et al. v. Husted, --- F.3d ----, 2016 WL 5328160 (6th Cir. 2016), (“APRI v. Husted). In accordance with this ruling, a federal court in Ohio recently ordered that Ohio voters who were wrongfully purged from the rolls must be permitted to cast a ballot that counts in the November 2016 election. See Opinion and Order, No. 2:16-cv-00303 (S.D. Ohio 2016) (Dkt. No. 89). Tennessee voters should have the same opportunity.

We urge you, as the State’s chief election official, to take immediate steps to bring the State into compliance with federal law by directing local election officials to cease and desist from cancelling any voter registration based on voter inactivity and by implementing a process through which the ballots of improperly cancelled voters can be counted. We are eager to work cooperatively with you to develop a plan for compliance with the NVRA in advance of the 2016 general election.

I. The Requirements of Section 8 of the NVRA

Section 8 of the NVRA lays out all permissible reasons for which states may remove registered voters from the rolls. Importantly, the NVRA expressly prohibits removing the name of a registrant from the voter roll, “except at the request of the registrant; or as provided by State law by reason of criminal conviction or mental incapacity” or when the voter changes address, and then only after the address change has been confirmed in accordance with specific procedures. 52 U.S.C. § 20507(a)(3), (4); id. § 20507(c), (d). Removal based on a registrant’s failure to vote is prohibited. Id. § 20507(b)(2).

The NVRA establishes two specific procedures by which an individual may be removed from the voter registration rolls based on a change in residence: (i) when the registrant herself provides the information and/or confirmation that she has moved outside the jurisdiction in which she is registered, or (ii) when reliable second-hand information indicates the voter may have changed address, and then only after the state sends a confirmation notice in accordance with 52 U.S.C.§ 20507(d)(2) and the voter fails to respond and fails to vote in any election in a period encompassing two federal general elections. Id. § 20507(d)(1)(B). Without a reliable basis for believing the voter has moved—which cannot include failure to vote—the confirmation procedure of Section 8(d)(2) is inapplicable, and removal of the voter for failing to vote violates Section 8(b).

II. Tennessee’s Roll-Maintenance Process Violates Section 8 of the NVRA Because Failure to Vote Cannot Trigger the Sending of a Confirmation Notice.

According to APRI v. Husted, the cancellation of any voter’s registration based on that voter’s failure to vote is a violation of the NVRA. The Sixth Circuit struck down Ohio’s “Supplemental Process,” a process that used two years of voter inactivity to initiate the confirmation-notice-and-removal process. The practice authorized by Tennessee law § 2- 2-106(c) also uses a voter’s failure to vote to trigger the confirmation-notice-and-removal period and is therefore impermissible under the Sixth Circuit’s APRI decision.

According to Tennessee law, the county election commissions are each instructed to complete an “address verification process at least on a biennial basis.” Tenn. Code Ann. § 2-2-106(b). County administrators of elections are instructed to send a forwardable, postage prepaid, confirmation notice to any voter who has been identified as having changed address. Tenn. Code Ann. § 2-2-106(c). Additionally, state law provides that “the county election commission shall also follow this process if indications exist that the voter may no longer reside at the address at which the voter is registered, such as the voter’s failure to vote, or otherwise update the voter’s registration over a period of two (2) consecutive regular November elections. Tenn. Code Ann. § 2-2-106(c). Under Tennessee law, once a confirmation notice is sent, “if the voter fails to respond to the confirmation notice, does not appear to vote, and does not update the voter registration between the time the notice is sent and the second regular November election held after the notice was sent, the administrator of elections shall purge the voter’s registration.” Tenn. Code Ann. § 2- 2-106(e).

Tennessee’s purge practices threaten to disenfranchise eligible Tennessee voters whose registrations have been cancelled unlawfully by the State. Tennessee must immediately cease carrying out purges that are triggered by failure to vote. Furthermore, it must permit the voters it removed from the rolls under section 2-2-106(c) to cast a ballot that counts in the upcoming 2016 November Election.

As the District Court in Ohio recognized, “if those who were unlawfully removed from the voter rolls are not allowed to vote, then the Secretary of State is continuing to [] disenfranchise voters in violation of federal law.” Opinion and Order, No. 2:16-cv-00303, at 4-5 (S.D. Ohio 2016) (Dkt. No. 89). Accordingly, the Court ordered an easy-to- administer solution that will permit unlawfully purged Ohio voters to cast a ballot that will count in the 2016 Election. Under that plan, any voter who was unlawfully purged will be able to cast a provisional ballot that will be counted.

III. Conclusion

The State of Tennessee is engaged in continuing violations of the NVRA. Tennessee must ensure that all of its citizens are guaranteed the right to vote and are not unlawfully purged from the voter rolls merely for exercising their choice not to cast a ballot. As Tennessee’s chief election official, you are responsible for ensuring that the state complies with the NVRA.

As Tennessee’s early voting period has already begun, we are prepared to meet with you and other state officials immediately to develop a comprehensive plan that will bring Tennessee’s roll maintenance procedures into compliance with the NVRA, and to discuss ways in which Tennessee can ensure that every eligible voter in the State can cast a ballot that counts.


Stuart C. Naifeh Senior Counsel Demos
220 Fifth Avenue, 2nd Floor New York, NY 10001 (212) 485-6055

Cameron A. Bell Legal Fellow
Demos nd 220 Fifth Avenue, 2nd Floor New York, NY 10001 (212) 485-6023