Debate over “Closed vs. Not Open” is the new, “It depends upon what the meaning of the word ‘is’ is.”
Monday, the Shelby County Chancery Court heard the cases, Shelby County Democratic Party v Shelby County Election Commission and NAACP Memphis v Shelby County Election Commission.
Chancellor JoeDae L. Jenkins presided over the consolidated cases. Julie Byrd Ainsworth was plaintiff’s counsel for the SCDP. Alexander Wharton was plaintiff’s counsel for the NAACP. John Ryder reprised his role as defense counsel for the Election Commission.
The hearing started promptly at 1:30 pm.
At this point, going through the blow by blow seems fruitless. You can read other media reports for that. But there are some high points.
Closed vs. Not Open
For what seemed like hours, but probably wasn’t, defense counsel John Ryder kept objecting to the use of the word “closed” for Early Voting sites that are not open, in the original and second Early Voting plans, for the first four days.
After this went on for a while, NAACP counsel Alexander Wharton asked Chairman Meyers, “What would you call a voting location that’s not open?”
Chairman Meyers: “Closed”
Wharton: “There’s more than one way to skin a cat.”
It was maybe the one funny highlight of the day.
A highlight for me is that I did get to testify and present a map I published in a previous post.
I was surprised I got to testify.
I was relieved I got to testify.
My Testimony
I was allowed to testify…for illustrative purposes, about the map to the left.
I didn’t testify as an elections or demographics expert, and that’s important…from a legal standpoint.
Defense counsel objected to me initially, but ultimately didn’t object to my testimony on the “illustration”.
I was glad I could be a part of the process. I’m even more glad defense counsel Ryder saw fit to use my map and testimony to support his argument…because that made me seem more credible on the stand.
Thanks John!
That argument, brought by defense counsel, was then turned on its head in redirect.
Thanks Alexander Wharton!
Still…I’m not an expert, and I’m not pretending to be. I’m just a guy with a blog, a knowledge of public records, and a slight OCD disorder when it comes to Excel Spreadsheets and Google Maps.
Thanks God…or my parents…or however I ended up with this.
The Ruling
Chancellor Jenkins sided with the SCDP and the NAACP.
He found that the Election Commission did not adequately inform the public of the agenda on their June 21st meeting. This could be viewed as an open meetings violation.
Jenkins found that the absence of detail in the agenda and the failure to publish recent minutes of the Commission constituted a failure to adequately inform the public of the Commission’s actions. This, in his words violates the spirit, if not the letter of the open meetings law.
Because of all that, and maps and testimony delivered and prepared by yours truly, the court ruled that the Early Voting plan approved on July 29th had a clear and disparate impact on African-American voters.
As a result, the court ruled that two additional sites should be opened on the first two days of early voting (July13-14) at Mississippi Blvd Christian Church and a site to be determined in North Memphis. Tuesday the court amended its order that all Early Voting sites should open on Tuesday, July 17th and remain open through the Early Voting period.
An updated list of dates and times for early voting locations can be found here.
The conclusions of the Court, and the ramifications for those conclusions are the real story…even though none of the media coverage will really talk about the “in the weeds” stuff.
And that “real story” means there will have to be some changes in how the Shelby County Election Commission operates when it comes to disclosing future and past business to the public.
Time to the Change the SOP
Shelby County Election Commission Chair, Robert Meyers was on the stand for hours.
Chairman Meyers disclosed in testimony that he asked the Administrator of Elections, Linda Phillips, to undertake a research project. That research was to find out if the Election Commission was serving the voters, particularly in early voting sites, as best they could.
Meyers admitted on the stand that this request was made outside the normal bounds of a meeting (actually after a meeting as he recalled). He also noted that these kinds of requests come from Election Commissioners all the time. They’re standard operating procedure (SOP), to paraphrase his testimony.
Phillips presented her report during the June 21st meeting, according to Meyers. The report was presented as a resolution to rejigger the early voting. That presentation was made under the heading: Resolutions for August 2, 2018 Election .
Meyers said, on the stand, he believed anyone would understand this agenda item as a vote on the Early Voting Plan. But that’s anything but clear. Those resolutions could have been anything from approving vendor contracts, to the background color or design of the “I Voted” stickers.
Further, because there had been no prior discussion of the “research project”, nor was that research published for public inspection, there is also no way any citizen could have reasonably expected the Commission to hear such a presentation.
Disclose with Detail
This brings up something that I’ve noted for several years at the Election Commission. It also applies to other boards who follow the letter, rather than the spirit of the law.
Publishing an agenda, with little or no detail, is of no use to most citizens.
It would be like the Land Use Control Board (LUCB), or the Office of Planning and Development sending out notices to a neighborhood that said, “Proposed Development”, rather than ACTUALLY MAKING INFORMATION AVAILABLE TO THE PUBLIC ABOUT A PLANNED DEVELOPMENT which looks like this.
The Shelby County Election Commission has been admonished in the past by the Shelby County Commission and the Memphis City Council about the way they conduct business. Both of those resolutions were related to the actions of former Administrator Richard Holden. But the Commissioners bear some responsibility as well.
The Commissioners oversee and hire the administrator.
The Commissioners set precedents for the way the public meetings are conducted.
So maybe it wasn’t just the previous administrator. Maybe these Commissioners, and Chairman Meyers in particular, just don’t get that regular folks aren’t lawyers. Regular folk don’t have time to follow all the internal machinations of a body I’m certain 60% of them barely knows exists.
Publishing an agenda with no detail is of no use to the public. Its going through the motions. If anything, its doing just enough to satisfy the letter of the law, while ignoring the spirit.
If I saw an agenda like the one I linked above, I would think nothing is happening, and I eat, sleep, and breathe this stuff.
And the judge apparently agrees with me.
It Ain’t Over ‘Til Its Over
As pleased and excited as I am about the ruling in this case. I fully expect counsel for the Election Commission to aggressively appeal.
Based on what I saw for upwards of 8 hours in the courtroom, the Election Commission still thinks they’re playing above board and fair with the public.
The Commissioners have shown they don’t really understand the public they’re serving.
Monday’s display at 140 Adams reinforced my belief that the majority of these Commissioners have a blind spot when it comes to the majority of the voting public.
Chancellor Jenkins apparently sees this blind spot, and wants them to correct it.
Conclusion
Hopefully, the Election Commission, and the Commissioners themselves will take this opportunity to be a little more frank with the public. Hopefully, rather than retreating into their rabbit hole, the Commission will seek to give the public real tools to stay informed about Commission business.
Doing this is simple. Detailed agendas with attached reference documents. Timely posting of minutes. Extra time allotted for the bigger decisions that deviate from longstanding norms.
By doing these things, and perhaps more, the Election Commission can inoculate themselves from these kinds of controversies. But it will take a higher level of intention from the Commissioners, and a greater understanding of communicating with the public.
I wish them luck.