Criminalizing voter registration

Political scientists are anticipating a massive turnout for the 2020 election. This could be a big problem for Republicans. People who typically don't vote tend to be younger, more diverse, and favor Democrats. If too many of those folks show up on November 3, 2020, Republicans could be in for a long night. 

There are a variety of tactics that Republicans employ to reduce turnout, including imposing voter ID requirements, reducing the number of polling places, restricting absentee voting, and shortening the time for early voting. 

Republicans in Tennessee are trying a new tactic. A new law, set to go into effect on October 1, would impose complex bureaucratic requirements on organizations that register people to vote. Violating this new law would subject these nonprofit groups to civil and criminal penalties. 

The law was passed after "after a coalition of groups, led by the nonprofit Tennessee Black Voter Project, conducted a statewide voter registration drive that accumulated 91,000 applications." Their work helped increase turnout among black voters in Tennessee "from 31% in 2014 to 44% in 2018."

There is a lot more work to do. The state ranked "49th in the nation for voter turnout in 2016 and 45th in voter registration." Nearly 40% of Tennessee adults are unregistered. 

"It’s going to be extremely difficult to get people registered to vote. It is absolutely designed to hurt our community and hurt our efforts to register people," Charlane Oliver, co-founder of Equity Alliance, which registers voters in Tennessee, said.

The ACLU sued Tennessee's Secretary of State and asking a federal court to strike down the law, arguing that it violates the First Amendment. On Tuesday, the ACLU asked the court to prevent the law from going into effect until the case is resolved. The lawsuit could have a significant impact on politics in Tennessee and across the country. 

Stopping voter registration before it starts

Before an organization attempts to register a single voter, the new law requires it to jump through a number of hoops. Specifically:

Section 2-2-142 (the “Drives Provision”) of the Law requires, under threat of criminal prosecution, that “prior to conducting” any “voter registration drive” in which an organization or individual “attempts to collect” more than 100 voter registration applications, organizations such as Plaintiffs must: (a) pre-register with the state, indicating the county or counties where the registration drives will take place, the name and contact information of the person “conducting the voter registration drive,” and the contact information for the officers of the organization conducting the drive; (b) complete a specific training administered by the state’s Coordinator of Elections; (c) ensure that each and every individual participating in the drive also complete this training; and (d) file a sworn statement promising to obey all state laws and procedures.

All of these provisions are designed to make registering voters in Tennessee extremely difficult, if not impossible. The "pre-registration" requirement makes it more difficult for more organizations to get involved. The requirement that every person participating in a voter registration drive complete a specific, state-run training is designed to dry up volunteers, who often decide to pitch in at the last minute. The state can also artificially limit the number of people involved simply by limiting the number of trainings offered. The requirement that the person in charge of the voter registration sign a sworn statement is an intimidation tactic, especially in light of the associated criminal penalties. 

Criminalizing speech about voter registration

The law also requires any “public communication regarding voter status,” including "phone calls, emails, text messages, web content, and mailings," to be accompanied by a state-mandated disclaimer. This disclaimer must state that the "communication is not made in conjunction with or authorized by the secretary of state." According to the law, the disclaimer must be "clear and conspicuous and prominently placed." It does not define what organizations need to do to ensure compliance. Failure to comply, however, also subjects the organization to criminal penalties. 

This requirement makes effective communication about voter registration nearly impossible. Many of the most common tools of communication, like texts and tweets, have a limited number of characters available. It also means that any pre-printed materials cannot be reused. It is imposing substantial costs on nonprofit organizations that are already struggling to make ends meet. 

Fines for missing middle names

The Tennessee law also imposes substantial fines on any organization that submits more than 100 "incomplete" forms. 

It defines “incomplete voter registration application” as one that “lacks an applicant’s name, residential address, date of birth, declaration of eligibility, or signature.” The Law is silent as to whether incorrect information in any of these categories renders an application “incomplete.” The required fields also have multiple sub-fields: e.g., first name, middle name, last name, street number, street name, apartment or suite number, city, county, zip code, month, day, and year of birth, and so forth. But, again, the Law is silent as to whether a missing subfield renders an application “incomplete.”

While imposing fines on anyone who submits too many incomplete forms, it also requires organizations to submit any form collected within ten days. This severely limits the ability of an organization to collect the missing information. They are setting organizations up for failure. And failure comes with "significant civil penalties, ranging up to $10,000 per offense per county." 

Reducing turnout of the newly registered

Even if a voter registration organization manages to register a voter without violating the new law, it is not in the clear. The purpose of registering voters is to increase turnout in the next election. So many voter registration organizations follow up with newly registered voters and encourage them to show up. The new law would prohibit "organizations from copying or retaining voter information unless the applicant explicitly consents." The "consent must be obtained in writing, creating an additional hurdle to engaging citizens about voter registration."

Why do you need to register to vote?

Tennessee's new law would make voter registration more difficult. But it also raises a broader question: why are people required to register at all? 

A group of high school students in Chattanooga drafted a bill that would "that states anyone with a driver’s license would be automatically registered to vote at age 18." This is already the law in 16 states. 

The high school students succeeded in getting their bill introduced, and there was even a committee hearing. But the bill never advanced. 

The new restrictions on voter registration are purportedly an effort to make sure voter registration information is accurate. The high school students' bill would actually solve that problem by using information already provided to DMV for voter registration. But it would also increase registration and, ultimately, participation. That's why it was rejected. 

"They are trying to lead us, but the adults in the Legislature don’t seem to want to listen," Kelley Elliott, a Tennessee activist who supported the students' bill, said.

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