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Election Commission gets Appeals Court relief

A Tennessee appellate court ruled Wednesday (Oct. 31) that the Shelby County Election Commission can mail notices to the thousands of hopeful voters whose registrations were deemed to have “deficiencies” – including things such as a misspelled street name or erroneous ZIP code or Social Security number.

So what exactly does that mean for the upcoming Nov. 6 election? Not surprisingly, it depends on who you ask.

“That means that anyone who cures a deficiency on Election Day will not vote on a machine,” said Election Commission Administrator Linda Phillips in a statement. “We are encouraging everyone, especially those who need to cure deficiencies on their registration forms, to vote early.”

The latest ruling – issued just days from Election Day and only hours before early voting ends on Nov. 1 – upends an earlier court victory for the Memphis NAACP and the Tennessee Black Voter Project. And it still misses the point, said Alexander Wharton, counsel for the two groups.

Danetria James, 23, signs in at the UP The Vote 901 block party at First Baptist Broad on Oct. 31. It will be her first time voting. (Photo: Lee Eric Smith)

“In a sense, the Court of Appeals said we were right,” he said Wednesday evening. “People get that notice in the mail, and it tells them what the deficiency is. But what the Election Commission didn’t do is tell people that they have the right to cure those deficiencies. Nothing on that notice says, ‘Here’s how to fix this so you can vote.’ It’s perplexing to me.

“How does the individual know they have a deficiency unless they send them something?” Wharton added. “The obligation is on the Election Commission to inform people that they have the right to cure a deficiency and vote.”

At issue: Problems on voter registration forms. Maybe a recent divorcee enters her maiden name instead of her legal one. Or a Frayser ZIP code that should read “38126” is mistakenly written “38162.” Or someone living on Perkins Road writes in “Perkis Road” instead.

“People make mistakes all the time. We’re not saying the Election Commission should be faulted for that,” Wharton said. “What we are saying is that they have to do their job and make sure people have the ability to correct those mistakes.”

Ordinarily, the Election Commission mails notices to applicants once deficiencies are discovered.

“Letters are automatically generated by the computer when an application is found to contain mistakes, omissions or is otherwise incomplete,” Phillips said in the statement. “This is something we were already doing.”

But the NAACP and the Tennessee Black Voter Project sued the Shelby County Election Commission, arguing that the commission hadn’t moved quickly enough to inform registrants of trouble with their registration – giving those voters little to no time to correct any problems before the election. On Oct. 27, Chancery Court Judge Joe Dae Jenkins agreed.

“Failure to provide the applicant with notice that there is a deficiency (in their form) denies them of due process under the law,” Jenkins said upon issuing his ruling on Oct. 27. “The harm to the applicant far outweighs the harm to the Shelby County Election Commission in requiring it to afford the relief this court will order.”

Phillips testified that the Election Commission was bombarded with as many as 40,000 registrations in the final week – including 12,000 on the last day to register. She said the commission added workers and shifts to handle the workload, which included calling disputed voters by phone.

“Some of these cannot be cured. They’re missing names,” she said. “Even if I wanted to contact some of these voters, they are apartment complexes and there is no number on them. …There is no phone number…We’ve had a great deal of difficulty processing a number of these forms.”

Phillips said she wants all eligible voters to be able to vote. But at the same time, she expressed concern of voter fraud.

“I want every citizen in Shelby County who is eligible to register to vote to register,” she said. “On the other hand, I don’t want fraudulent voters to vote. That is my issue.”

Wharton estimates that between 4,000 and 6,000 prospective voters are affected, though he would not reveal how those numbers were tabulated.

“In truth, we just don’t know,” he said. “Again, because the Election Commission hasn’t informed people of their deficiency. There’s no way to know for sure how many people we’re talking about until that happens.”

Grassroots efforts like UP The Vote 901 have been working to raise awareness. On Wednesday afternoon, the group hosted a “Surprise Block Party” at First Baptist Church-Broad. Volunteers in UP The Vote 901 shirts were there to answer questions and help drive voter turnout.

“(Today’s) ruling didn’t change our on-the-ground activity one way or the other,” said the Rev. Earle J. Fisher, of UP The Vote 901. “We’re always trying to reach out to people make sure they have proper information. There are people inside that fellowship hall right now that we’ve already worked with – just to confirm that their registration is valid, and that they have all of the information that they need so that they will feel confident going to the ballot box.”

Wharton and Memphis NAACP President Deidre Malone each mentioned a possible appeal of Wednesday’s decision in separate interviews. But with early voting essentially over, they’re hoping to work with the Election Commission to ensure that disputed voters can vote without issue on Nov. 6.

“We get the bad news the day before the last day of early voting,” said Malone. “My hope is that (disputed voters) are allowed to cure their deficiencies.

“The Election Commission should work with us,” she continued. “I’m not sure they will, but they should.”

What would that look like? Wharton imagines NAACP and Tennessee Black Voter Project helping to staff a phone bank to call disputed voters to explain how to correct any deficiencies and make sure their vote counts.

“And allow it to happen on Election Day. And not a provisional ballot,” Malone said. “We want every vote to be counted early and as soon as possible.”

Otherwise, Wharton says a chilling and entirely plausible scenario could play out for who knows how many hopeful voters.

“So let’s say a voter misspells the name of his street. He has a deficiency,” Wharton said. “But he never got a notice. So he shows up to the polls and votes using a provisional ballot.

“But if no one ever told him that his error was misspelling his street name, when he fills out his provisional ballot, he makes the same spelling error again. He casts his ballot, believing his vote counts.

“But when poll workers go to count his ballot, they discover the same deficiency – the same misspelled street name,” Wharton continued. “That renders the ballot invalid. His voting is an exercise in futility, a waste of time.”

Preventing that type of situation is something Wharton hopes the Election Commission will collaborate with them on.

“That’s what we’ve been trying to get done,” he said. “Keep the help desk. Keep someone at the Election Commission headquarters to help those individuals. Even if they have to cast provisional ballots, we want them to count.

“We don’t want people just going through the motions.”

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