Shelby Cnty. Advocates for Valid Elections v. Hargett

348 F. Supp. 3d 764
CourtDistrict Court, W.D. Tennessee
DecidedOctober 24, 2018
DocketNo. 2:18-cv-02706-TLP-dkv
StatusPublished
Cited by7 cases

This text of 348 F. Supp. 3d 764 (Shelby Cnty. Advocates for Valid Elections v. Hargett) is published on Counsel Stack Legal Research, covering District Court, W.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shelby Cnty. Advocates for Valid Elections v. Hargett, 348 F. Supp. 3d 764 (W.D. Tenn. 2018).

Opinion

THOMAS L. PARKER, UNITED STATES DISTRICT JUDGE

As Tennesseans make final preparations to cast their ballots, Plaintiffs move for a Temporary Restraining Order ("TRO") and Mandamus requiring state and local election officials to take last-minute affirmative steps to implement procedures Plaintiffs believe will make the election more secure and trustworthy. (ECF No. 23.) The day after Plaintiffs filed the motion for TRO, this Court held a hearing. (ECF No. 42.) Because Plaintiffs failed to meet their burden of proof, at the end of the hearing, the Court issued a brief oral ruling denying the Motion. The Court now issues this written opinion explaining its reasons for DENYING Plaintiffs' Motion for Temporary Restraining Order and Mandamus.

*768BACKGROUND

Plaintiffs filed this suit on Friday, October 12, 2018, five days before early voting began in Shelby County, Tennessee for the November 2018 elections. (ECF No. 1.) The Complaint brings "a civil rights action for declaratory and injunctive relief" against the State of Tennessee, Shelby County and various individuals responsible for conducting elections. (Id. ) Plaintiffs claim that the Defendants' use of certain voting devices-and the lack of security and accountability associated with those devices-violates Plaintiffs' constitutional right to vote. (ECF No. 1 at PageID 2.) In particular, the Complaint alleges that Shelby County Election Commission's ("Shelby County") use of AccuVote-TSx R7 direct-recording electronic voting machines ("AccuVote DRE") and Diebold GEMS version 1.18.24.101 voting software does not meet Tennessee statutory requirements and thus creates an inherently insecure and inaccurate voting system. (Id. at PageID 48-49.)

In essence, Plaintiffs' main dispute with Shelby County's voting system is that it does not create a voter verified paper audit trail ("VVPAT"). (Id. at PageID 2.) The AccuVote DRE does not record each voter's selection on a paper ballot. Instead, each voter verifies their choices on the screen (much like using a banking ATM machine) before submitting their ballot electronically and their votes are stored on removable memory card and on the voting machine's internal flash memory. (ECF No. 1 at PageID 22.) The election officials later upload the information from the memory card to a server that tabulates the votes. (Id. ) Allegedly, the lack of a VVPAT has caused-and will continue to cause-"Plaintiffs and Shelby County voters to cast votes on an illegal and unreliable system that must be presumed to be compromised and that is incapable of producing verifiable results." (Id. at PageID 49.)

Plaintiffs also assert that Defendants are aware of the deficiencies in Shelby County's voting system and that Defendants have violated the Fourteenth Amendment to the United States Constitution by continuing to use this voting system. (Id. ) In fact, Plaintiffs allege that Shelby County created a fundamentally unfair voting system in violation of the Due Process Clause of the Fourteenth Amendment. (ECF No. 1 at PageID 52.) And Plaintiffs allege that Defendants knowingly treated Plaintiffs and other Shelby County voters differently than similarly situated voters in other Tennessee counties in violation of the Equal Protection Clause of the Fourteenth Amendment. (Id. ) Finally, Plaintiffs allege that Shelby County's voting system violates Tennessee statutory law and the Tennessee Constitution. (Id. at PageID 59-60.)

The Monday after filing suit, Plaintiffs then moved for a temporary restraining order and mandamus order requesting an order requiring the election officials take various affirmative measures related to the voting system before early voting began on October 17, 2018. (ECF No. 23.) The Court held a hearing on this matter on October 16, 2018. Representatives for all parties appeared at this hearing.

STANDARD OF REVIEW

A TRO "is an extraordinary remedy designed for the limited purpose of preserving the status quo pending further proceedings on the merits...." Stein v. Thomas , 672 F. App'x 565, 572 (6th Cir. 2016) (McKeague, J., dissenting) (stating that the district court overreached and disrupted the status quo by ordering Michigan officials to recount votes before required to under state law). Because they are extraordinary remedies, TRO's are only granted where the movant carries his burden of proving that the circumstances *769clearly demand it. Leary v. Daeschner , 228 F.3d 729, 739 (6th Cir. 2000) ; accord National Viatical, Inc. v. Universal Settlements Int'l, Inc. , No. 1:11-cv-1226, 2012 WL 3779298, at *2 (W.D. Mich. Aug. 31, 2012). As with the requested TRO here, a TRO tantamount to a mandatory injunction requires a higher-yet undefined-burden to issue than required of an order merely preserving the status quo. See Hill v. Snyder , No. 16-2003, 2016 WL 4046827, at *2 (6th Cir. July 20, 2016) (holding that the circuit court had jurisdiction to determine on interlocutory appeal whether to stay a TRO that acted as a mandatory injunction requiring affirmative action instead of simply preserving the status quo); Ne. Ohio Coalition for Homeless & Serv. Emps. Int'l Union, Local 1199 v. Blackwell , 467 F.3d 999, 1006 (6th Cir. 2006) ("When a TRO does not 'merely preserve the status quo pending further proceedings,' but rather 'directs action so potent with consequences so irretrievable, we provide an immediate appeal to protect the rights of the parties.' ").

Rule 65 of the Federal Rules of Civil Procedure governs motions for TROs and injunctions. A motion for a TRO must include "(A) specific facts in an affidavit or a verified complaint clearly show[ing] that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be hear in opposition; and (B) the movant's attorney [must] certif[y] in writing any efforts made to give notice and the reasons why it should not be required." Fed. R. Civ. P. 65(b)(1)(A)-(B). The Court looks at these factors in determining whether to issue a TRO:

(1) whether the movant has a strong likelihood of success on the merits;
(2) whether the movant would suffer irreparable injury absent a stay;
(3) whether granting the stay would cause substantial harm to others; and

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Bluebook (online)
348 F. Supp. 3d 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelby-cnty-advocates-for-valid-elections-v-hargett-tnwd-2018.